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Cross-examined by Mr. Martin: I was born in the county of Kerry, Ireland, and have been in America about a year. McDonell, of Tennessee, swore me in as a Fenian. I was sworn in on this side, immediately after landing. Do not remember the oath. It was about serving them loyally, or something of that sort. The last was “ So help you God." Did not pay a great deal of attention to the oath. I turned Queen's evidence. I first told one of the iurnkeys that I knew some of these men, and I suppose he told Mr. Harrison. I expect to get off for telling; but do not give my evidence to get off. I do not think that it was part of their oath that I was to keep their secrets. I do not remember this being in it. I was in McDonell's company. I suppose O'Neil was commander. He was pointed out to me, and was a young man with rather light hair. I do not know the second in command. Came over about four o'clock in the morning. Some more came after me. Do not know Colonel Starr. Do not know Colonel Hoy. Know Shields; he was acting as captain. Do not know Captain McNally or Colonel Baily. Was in the column formed when they landed on this side at daylight. I do not know who marsballed the men. I did not see any man form them in but their captains. Never served in a military capacity before. Saw no one except Shields give orders. He wore a felt hat and black coat, bad a beavy moustache and revolver; did not notice whether he had a sword or not. He was a stout man, about thirtyfive years of age. His moustache was dark. Most of the officers that I saw were dressed in civilians' clothes. One that I saw at Frenchman's creek was not dressed in military dress, nor it was not a civilian's. He had on a cloak and high boots. I saw a lieutenant there with a low black hat, who had a broken nose. Mostly all had black hats and dark clothes. Shields was the oldest man I saw tbere, (at Ridgway.) At Fort Erie I saw Lynch and some others as old as Shields. There were a few (one or two) who were as old as the prisoner, about his age and size, but somewhat taller. I saw two in the lot answering this description. Saw the prisoner for the first time on the first of June.
He was at Fort Erie, in the Fenian camp, about nine o'clock. I cannot tell when he came over. I saw another scow load come over after us about seven o'clock. The prisoner, when I saw him first, was walking up and down the Feniun camp, near the arms. This was some distance from Fort Erie. I did not notice him when the men landed, nor when they formed after landing; the first I saw of him was when we got to Fort Erie. The arms were stacked and the fire lit for dinner when I first saw him. He was dressed in about the same clothes as he has on now; did not know him at all. Never bad any trouble with the prisoner; I appear against him because I saw him there. I do not know anything about any of the others except those indicted. I know John Micham; I slept with him. I was not sent to sleep with those against whom I was to give evidence; slept with none except Micham and Foy. I had a conversation with Micham about giving evidence; he did not say anything; he did not ask me why I turned Queen's evidence.
Mr. Martin. Did you assign a reason? The prisoner demurred answering, and remained silent. His lordship, after allowing a number of questions similar in character to be put, asked, “Do you think you should put these questions, Mr. Martin, about collateral niatter, in 8 charge of this kind ?"
· Mr. Martin then abandoned the question.
On the close of the examination of this witness,
His lordship asked Mr. Martin if he intended to address the jury on opening the defence or at the close. Mr. Martin stated that he would reserve bis remarks until the close, when His lordship stated that as it would be impossible to close the case to-night, he would adjourn the court at this stage. Addressing the jury, who would consequently be locked up, he said: We shall not be able to finish this case to-night, in consequence of the large number of witnesses. The sheriff will provide you with proper accommodation and find you with every requisite; but you are not to speak to any person or enter into any conversation, especially with strangers. You will not, also, express any opinion, as it may prejudice some; and it is better, therefore, that you avoid all conversation about the subject in your charge until tho case is fully placed before you. Anything you want you will get. Supper and breakfast will be provided for you.
The court then adjourned till ten o'olock a, m. to-day.
SECOND DAY'S PROCEEDINGS. COLONEL LYNCH'S DEFENCE-WOUNDED FENIANS ON THE STAND-PRISONER FOUND
GUILTY-HE IS SENTENCED TO DEATH. Yesterday the proceedings in the assize court were resumed at ten a. m., by Mr. Justice John Wilson. The crowd of spectators in court was still greater than on the opening day.
Indeed, we have never before noticed the assize chamber similarly thronged. The body of the building, gallery and passage way were all densely packed with people during the day. Even the window sills of the chamber had their quota of spectators.
Colonel Lynch's trial was resumed, and the evidence for the defence commenced. In sddition to the solicitor general and Hou. J. H. Cameron, Mr. R. A. Harrison and Mr. Johu MeNab, county Crown attorney, were present on behalf of the Crown.
Rev. John McMahon examined by Mr. MARTIN: I have seen the prisoner at the bar before. Saw him in the forenoon of the tirst June last: he was in the camp at Fort Erie. I talked with him; he was taking down some notes, and said, if I am not mistaken, that he was writing for some paper in Louisville, Kentucky. Hon. Mr. Cameron objected to statements purporting to have been made by prisoner. Witness. I saw him writing on a piece of paper- book, I think. I saw 10 sword uor gun with him. I saw him about an hour after that; he was walking along, looking about. I saw no more of him after that that I can remember. I was with the Fenians after that, and until I was taken, but saw nothing of him. The Crown officers said they would not cross-examine witness.
Mrs. Ryle sworn: I am the mother of Thomas Ryle that was examined here yesterday as Queen's evidence.
MT. MARTIN. It is an unpleasant question to ask you; but do you think your son Thomas onght to be believed on his oath?
The Crown officers objected to the question.
Witness. I am sure and certain he ought not to be believed. I am fifteen years in America; my son came to America when eight years old; he was with ourselves a long time; wben not very old he was able to earn six dollars a month. He lived with us first at Copetown, near Dundas, three years ; from there I removed to Paris, and spent another year there; from that place we went to Guelph, and live close to Guelph yet. He must have been about four years with me in Guelph ; he left for the United States a couple of years ago, and once before ihat he was over there also, and came back with no great welcome before him. Last April twelve months he cleared away, and heard nothing about him till we got a letter from the sheriff that he was taken with the Fenians. He did not come to America within a year. On my oath I would never believe his word any more than his oath.
To Mr. CAMERON. He has not been a good boy these nine years. I don't care about the Fenians; but consider he is such a bad boy, his information could not be accepted of. He bad a hand in all that was bad; in fact he was guilty of every crime except murder. (Laughter.]
Mr. CAMEROX. When did he begin to be bad ? Witness. It is I that can tell you ; he began to be bad about eight years ago. Mr. CAMEROX. Where were you living then? Witness. I can tell that, surely. He was managing for a widow woman, who thought all the world of him; he was five months with her when a carpenter in the place and himself went strolling about, and from that day to this he never did a day's good.
Mr. CAMERON. What did he do? WITNESs. He was a drunkard, a liar, a night-walker, Cloud laughter, ) and he waylaid people on the road. Mr. CAMERON. How do you know that? Witness. I can prove it; he was in jail in Guelph, and was tried for it. Mr. CAMERON. And found guilty ? WITsess. Of course, for he deserved it. Mr. CAMERON. What was he found guilty of? Witness. Waylaying, and stoning a man to death. [Laughter.] Mr. CAMERON. What did they punish him for? Witness He was got out on bail. (Loud laughter.] Mr. CAMERON. That is the punishment he received, is it? 'We will let you go. Mr. MARTIN, (to witness.) After he was bailed out, what then? Witness. He was not long out when he was as bad as ever. (Laughter. ] Mr. Martin. What happened after that? Witxess. I forget. Mr. Martix. Was he ever tried for the offence ? WITNESS, (looking puzzled.) Well, he was not. (Loud laughter. ] Mr. MARTIN. What was the reason ? WITNESS. I do not know. Mr. MARTIN. After that was there any further trouble? Witness. We were always in trouble, as long as I recollect. At last we would not harbor bin.
Rev. Mr. McMahon recalled. By Mr. Martin: Was not there when the Fenians landed; I went there about nine or ten o'clock in the morning, and saw the officers commanding
; among the officers commanding them, I saw one bearing a resemblance to prisoner; they called bim captain, and he was from Indianapolis; be was about the same size as pris
oner, and looked very much like him; the prisoner, when I noticed bim there, he had not so much beard upon his chin, it was much smaller; the other man like the prisoner had more beard than the prisoner has now; the man called the captain had a lighter complexion than prisoner; would know him if I saw him.
Rev. Mr. LUMSDEN sworn, and examined by Mr. MARTIN: Could not swear positively to his identity, but think I saw prisoner on the first of June last at Frenchman's creek, where the prisoners were encamped; he had a book in his hand and a pencil; my attention was called in a peculiar way, by a legal friend from Buffalo, who was a Freemason, who pointed out prisoner to me as a man taking notes; saw several of the officers commanding the Feniane; one of them had civilian's clothes on, General O'Neil; be resembles prisoner very much, but a little taller; did not observe the way prisoner then wore his beard.
DANIEL WHELAN. Was near Fort Erie about one or half past one, at the Fenian camp; saw prisoner there walking round; I understood him to be a reporter for the Louisville Courier; I saw some of the officers that were in command ; there were none of them resembling prisoner, that I saw ; noticed that the prisoner wore a heavy gray moustache then; I think he wore a beard, but am not sure if he had as large a beard on as now. I would have noticed it.
Mr. CAMERON. How did you happen to be there?
Mr. CAMERON. Certainly not; but his evidence may tend the other way. He need not answer unless he likes.
WITNESS. I may as well say I was seduced to come over there on Friday morning, and while there I saw Lynch, and asked his advice, and he said he had nothing to do with it, he was only a reporter for the Louisville Courier. He said I had better stay till night and try to make my escape; I met with an accident next day; I got hurt with a rifle ball in the neck, (at Ridgway, it is presumed.]
PATRICK Norton, examined by Mr. Martin: On the first of June last saw prisoner outside Fort Erie, some half a mile or so outside; I saw him doing nothing but walking around the same as any citizen; he had no sword or arms on him, that I saw ; saw some of the Fenian officers there; one of them resembled prisoner, and he wore a sword, and he had a command there, but I do not know his name; prisoner had less hair on his chin tben than now, only an imperial being there; he wore a moustache; the officer like him wore a beard like Lynch, but rather heavier.
To Mr. CAMERON: I came over into Canada on the first; I saw persons with arms there ; was a peaceable citizen; I met with an accident while over there; I will not tell what it was; I came over with another person ; saw prisoner on the camping ground at Fort Erie ; I do not know that there was any other Lynch there except prisoner; heard no one there called Colonel Lynch; do not know the name or rank of the person like prisoner.
THOMAS HENRY MAXWELL saw prisoner at the lower ferry, Fort Erie, or first June ; he stood there unarmed; heard he was a reporter for some paper in Louisville; saw some of the officers of the force ; do not recollect that any of them resembled prisoner; took no notice of prisoner's beard.
Mr. CAMERON. I Would advise my learned friend to consider the position he is placing the witness in. He is giving no evidence except against bimself.
Mr. Martin. I have no client except the prisoner at the bar. Mr. CAMERON. I feel it only right to give warning. JOHN COONEY called. Mr. Kenneth MCKENZIE, Q. C. I do not like to interfere, but I am witness's counsel. There is an indictment against him, and I would merely wish to remind him that he is uot bound to criminate himself.
Mr. CAMERON. I am satisfied, if I choose to pursue it, that the moment my learned friend (Mr. Martin) asks any question about these parties being present I can follow it up and ascertain why they were there.
Mr. MARTIN. But he can refuse to answer you.
Mr. CAMERON. He cannot. There is a certain amount of protection which, as far as possible, one would be desirous to throw round these unfortunate men.
John Cooney. Saw prisoner at the bar on the first of June; took him from the Southeru Hotel, corner of Michigan and Seneca streets, Buffalo, and drove him to Upper Black Rock ferry; it must have been about mid-day; I took his valise off the carriage and walked on board the ferry with it. On that occasion, prisoner wore an imperial and moustache, but he is grayer in the hair now than then; but all he wore was a moustache and imperial. Mr. CAMERON. Had he any beard. Witness was silent. Mr. CAMERON. Had he only an imperial and moustache ? Wirness. He had an imperial, sir. (Laughter.] Mr. CAMERON. Was that all ? Witness. He had an imperial, sir. [Loud laughter.]
Mr. CAMERON. We are pretty well aware of that fact now. I repeat my question, had he any beard ?
WITNESS, (roguishly.) He had an imperial, sir. (Roars of laughter.]
Ur. CAMEROX. Did you come over in the ferry-boat ? WITNESS. No, sir; I stood on the other side. Mr. CAMEROX. You never got over at all, then ? WITNESS. That is my business. [Laughter.] Quite a number were over there from the oiber side.
Mr. CAMERON. That will do. I will ask you no more questions. PATRICK O'MALLEY saw prisoner on the first of June last, on Exchange street, Buffalo, between eight and nine o'clock a. m. Did not see him after till he was taken prisoner. Was well acquainted with Lynch while he was a bookkeeper in Louisville. Lynch said that he came on there with a squad of Fenians, as reporter. I would believe his word, for I know bim to be a gentleman. Had a long conversation with him over some liquor that morning, Hare kuown him three years, and never knew him to wear anything but the moustache and imperial he wore that morning.
The Crown officers declined to cross-examine.
MARTIN CORMICK saw prisoner on the first June last, at a shingle mill at the cross-roads, Fort Erie; that was between eight and nine a. m.; he was standing there; did not understand what he was doing; he seemed to be doing nothing; was unarmed ; never saw any Feaian officers ; there was no crowd there then.
To Mr. CAMERON. As near as I can get at it, it was between eight and nine o'clock a. m. ; have no doubt prisoner was the mun; did not see a crowd of people here that day ; came over on the ferry-boat from the American side that morning; came in the upper ferry; sgw bim near that place.
JOHN MEACHEM saw prisoner after he was arrested on the second June; he was in the tug-boat Robb; he had a heavy moustache, like at present, and an imperial; did not see bim before; know prisoner, Thomas Ryle, (emphatically, ) from his general reputation for Feracity; I would not believe him on his oath.
To Mr. CAMERON. I never knew Ryle until I saw him in the jail. Dexxis LENAGHAN did not see prisoner on the first or second June last. PETER MORISON, on the second June last, saw prisoner about two hundred yards outside Fort Erie; I was arrested before he was; did not know him then; my acquaintanco with him has been in prison.
MICHAEL PURTEIL did not see prisoner on the first or second of June last.
PATRICK KEATINGE, on the first of June last, saw Stevens, who was examined here as a witness at Fort Erie. Saw him about eight o'clock in the morning after he had been taken a prisoner by the Fenians. He was intoxicated, and the Fenians said he was arrested by Colonel O'Neil's orders. Saw O'Neil there, and might have seen others, but did not know they were officers.
To Mr. CAMERON: Did see Stevens a prisoner with the Fenians. He was the only prisoder I noticed.
CHAS. WELLS. When prisoner was brought to Toronto jail I saw him. The morning he was brought in I shaved him the first time he was shaved in the Toronto jail. To the best of my recollection he had only a moustache and slight imperial on his lip.
To Mr. CAMERON. Prisoner and I came down on the cars together from the Brantford jail, where Lynch had been seven days.
To Mr. MARTIN. On the day Lynch was arrested saw him on the tug Robb, and he had a moustache and imperial only, the same as in the jail.
HENRY M. O'Brien, attorney. I know prisoner; knew him in my boyhood in Galway and Dublin. The county of Galway is his birth-place; he came to America after me; afterwards met him at a ball in my father's house, Dublin; met bim several times before I left Dablin; he held a government situation then ; was head clerk in the Charitable Bequests otrice.
This closed the evidence for the defence.
Gentlemen of the Jury: I dare say you were as much pleased as I was myself in listening to the very eloquent address of the learned counsel for the prosecution. He is an old friend of mine, and I wish to return him and those engaged with him in this case thanks for the very gentlemanly manner in which they have conducted it. They have given us every priv. ilege and opportunity which they possibly could. To have done less would not have been like them. In this case every one of us wants fair play and impartial British justice. We want you to throw aside any prejudices you may have had before you came into the jury bor. This is a case of life and death. The man in the prisoner's dock has not injured a hair on the head of any one. The most rabid witness for the prosecution does not say that he bas. This is a serious affair ; you are asked to condemn a man who has not injured any one of you. It is easy to condemn an innocent man, but not easy to undo the wrong. It would not be that man who has turned Queen's evidence, and who has probably already bargained with the sheriff for his reward, who would be responsible, but you who would give him the power to do the wrong. I want you to forget everything but the evidence which has been brought before you. There is a great amount of public feeling against those accused of being Fenians ; but it is one thing to aceuse and another to prove guilt. The proudest boast we have is that our judges are incorruptible and independent, and that, like Cæsar's wife, they are above suspi.
Ex. Doc. 42 -5
cion. I hope you will prove that the only thing wanted, an impartial jury, will be given, If a man cannot get a fair trial, of what use is the law? We may ourselves be in power to-day, and to-morrow be in the prisoner's dock. Would we not want a fair trial in that case ! to be tried by men who would keep the oath they took “to give their verdict according to the evidence so help them God ?" It was a great principle of law that a prisoner was presumed before trial to be innocent. He must be proved to be guilty, and the proof must be more than mere suspicion. If there was any doubt on the minds of the jury, he was entitled to the benefit of that doubt; and they must make him guilty beyond reasonable doubt, or acquit him. They must not pronounce a man guilty whose guilt is doubtful, from a desire to make an example. This case was like many others, in which a row occurs, and when the constables come to the scene of the disturbance they find not the guilty parties, who fly immediately, but the spectators who remain. You know the curiosity of many people. Men are frequently spectators of crimes they do not participate in. It would be a hard thing for a man to lose bis life because he was not quite as cautious as others. This is not entirely a case of ordinary law, though my learned friend addressed you as if it were so. In one sense it is so, but in another it is not. This law under which the prisoner is tried is not the ordinary law of the land. It has been changed on purpose for this occasion, and after the fact. It has been changed to make that a crime to-day which was not a crime when it was framed.
Hon. J. H. CAMERON. No, no.
Mr. MARTIN. This statute under which the prisoner is tried was brought in in 1837, and allowed the accused the right of appeal. This right was taken away by the new act passed this year. There is the more reason that you shonid give the prisoner the benefit of any doubt in your minds, because he cannot appeal and have a new trial.
Mr. CAMERON. I cannot sit quiet while my learned friend makes such assertions. The right of appeal depends upon the discretion of the judge.
His LORDSHIP. In any case I will not exercise any power I may have to deprive the pris. oner of his right of appeal.
Mr. Martin. Gentlemen, so far as the law is concerned, I was right in the course I took ; because, if the prisoner can be deprived of his right to appeal, it was right for me to suppose he would be until I knew to the contrary. And even yet he may be, for it may be the opinion of the other judges that such should be the case. The prosecution are bound to make out, to the full extent, that the prisoner is guilty. It is laid down by the highest judges that it a fair and reasonable doubt of a man's guilt arises, his life must not be taken away. Gen. tlemen, before going any further, I may say that as far as the learned counsel for the prosecution has addressed on the evils of Fenianism, its wrongfulness, and the necessity of pun; ishing those connected with it, I entirely agree with him. There is no party in Canada and scarcely an individual who has any different opinion on that subject. We have held the country many times before uuder very disadvantageous circumstances; we are determined to do it in the future [The learned counsel for the prosecution went into many particulars of the Fenian societies, the state of Ireland, and of the Irish in the United States. It was not necessary for him to have gone into these matters so fully, though it was very natural that he should give a history of the whole affair.] I know well that the intention in doing this was not to prejudice you unduly, yet it was the unavoidable effect of such a course to rouse up any lurking prejudices which may have existed in your minds. Some of you doubtless feel strongly on the subject of Fuuianism. If any prejudices exist in your minds aguinst the prisoner I beg of you to dismiss them. For a man to be accused of a grave crime is no reason for prejudice against him on the part of those who try him.
There is one point you are to take into consideration in the beginning of this case. The prisoner is indicted as being an American citizen. Now, the presumption is, that every one is a subject, and it is a principle of law that, in proving citizenship, a prisoner's admission is not evidence against him. "The presumption is that the prisoner is a British-born subject. There is no evidence to the contrary, except the admission of the prisoner in a letter written by him that he is an American citizen. I contend that that is not sufficient proof. There is no evidence to show that he is a citizen of the United States, or, if so, tbat he is a naturalized citizen. It is a common thing for a man to call himself a citizen of the place in which he lives, meaning simply that he lives there. It is not sufficient that a prisoner is shown to be where an offence is committed. If so, all the witnesses might be put in the dock as well as the prisoner. Would it not be a pretty state of things that of a number of spectators of a crime those called as witnesses by the Crown should be allowed to escape and the others considered as criminals? This would not be tolerated for a moment. He must be aiding and abetting in some way, or he is not a criminal. One of the strongest cir cumstances affecting a prisoner's guilt or innocence is always taken to be the acconnt which he first gives when arrested. If the prisoner, on being arrested, had given any other ac• count than that he was there as a reporter, the Crown would have brought that circumstance against him. When the prisoner tells the same story from the beginning, it is a strong cir cumstance in his favor. This must be applied in the present case. If the prisoner had been guilty he would have been likely to have denied altogether being with the Fenians. It is proved that he was seen in Buffalo before coming over here at all. On the Buffalo side he would have no interest in telling an untruth. The disposition would have been rather to boast of connection with the Fenians. But in Buffalo he told witnesses that he had nothing