to do with them, but was a reporter for a paper. No nation was ever yet found so barbarons as to hang the reporters. One of the commonest things of the present day was to send reporters where anything of interest was going on. In the American war numbers of reporters were employed on both sides; but did any one think of hanging any of them because employed by newspapers opposed to their cause? You all remember the events which passed in Italy when Garribaldi went on a marauding expedition of a similar character, only it was not successful. Numbers of reporters went along; but did any one think of hanging them? What would you think of hanging reporters under such circumstances? A newspaper reporter merely goes to tell things as he sees them, and he is not to be considered as guilty on either side. If he had been living on this side of the lines he would very likely have been employed as a reporter here, and positions would have been reversed. Gentlemen of the jury, there is a circumstance to which I would call your attention. There is a great array of talent against us. The solicitor general is opposed to us, and the great talent and experience of Mr. Cameron. We have this to contend against, and also the prejudices of the country against this class of prisoners. You have heard that we have applied for a safe-conduct for witnesses from the other side, and it would not be granted to us; not because the prosecution wished to prevent their coming, but because a safe-conduct for them could not legally be granted. Now, in any common case, as of a dispute about a horse or a cow, the court would have issued a commission to take their evidence, but in a criminal case this cannot be done, although the life of a fellow-being trembles in the balance on the event of the trial. This should influence you in favor of the prisoner, that the bulk of the evidence we want cannot be obtained, and induce you to give the greatest consideration to the evidence for the defence which has been brought. If we were allowed to produce that evidence here, the innocence of the prisoner would be proved beyond the shadow of a doubt. I have letters in my hand from those who did command in that expedition, and who are credible on their oath, who say that the prisoner was not one of them. One of the witnesses gave his evidence in favor of the prisoner under very peculiar circumstances. He said under cross-examination that he was with the prisoner on that occasion and was hit with a ball. The man who admitted that was surely an honest witness. His veracity stood the test of danger to his life, as he might be indicted for felony like the prisoner. This man says that he came over unwillingly, and that the prisoner advised him to get away as fast as he could. Is it likely that if the prisoner were there aiding and abetting the Fenians, he would try to get them to go away instead of trying to get recruits? This is the strongest possible evidence that he was not there to aid and abet the Fenians, but merely, as he says, to report for a newspaper. He exerted his influence, where he had any, to keep parties from joining the expedition. The very letter produced to prove him an American citizen says that he was not one of the expedition, but a newspaper reporter. These letters are produced by the prosecution as evidence, and if their testimony is good in one point it is good in another. The evidence of the Crown is this: They produce a number of witnesses to prove that the prisoner was in a number of places in company with the Fenians, and was wearing arms. Now, this is a question of identity, and it is very difficult to make out the identity of a criminal whom a witness never saw before. A reward was offered for the arrest of the criminal Townsend. People got very excited, and twenty-four or twenty-five persons swore that a man named McHenry was Townsend, although they bore no resemblance to each other; and if McHenry had been for away from his friends and unable to produce witnesses who knew him, he would have been convicted. This shows you how positively uncertain, how very unsafe it is to rely upon any one who says that he has recognized a man whom he has seen only for a few minutes in a crowd. I presume that nearly all the witnesses for the Crown mean to tell the truth. They intend to do their duty as men, but as men they are liable to be mistaken. In respect to one informer, according to his own admission, he has once already taken a false oath, and his own mother swore that she should not believe him on his oath. This man thinks, too, that if he can prove the prisoner guilty, he will save himself, and be gives the testimony he does out of mere cowardice. Is it safe to hang anybody upon such horrid, such degraded testimony as that? Would any one be safe if a man could be hanged on the testimony of a man who thinks he must give it to save himself?

As for the other evidence, it is easy to reconcile it with the fact of the prisoner's innocence. One witness is proved to have been in Buffalo at the time he says he saw the prisoner marshalling his forces on the Canada shore. As for the other witnesses, it is very easy to reconcile their truthfulness with their being mistaken. One of them was intoxicated at the time. None of them who say they saw the prisoner were military men; they were greatly excited; their own property was in danger; they saw a great number of strangers; their minds were distracted with the wild ideas which prevailed. They could not, under these circumstances, form as correct an opinion of what occurred as otherwise. They would take little notice of the features of the men whom they saw, and from whom they were in danger of their lives. Their minds would be taken up with astonishment and with the desire to save themselves and their property. No doubt several of these witnesses think they saw the prisoner as they describe. Stevens thinks he saw him marshal the column, and others think they saw him pass by them. I know you need not be told to keep your oaths, and try the prisoner honestly and fairly; and I know you will try to rid yourselves of the prejudices which every one of you entertain, as you must, from the general sentiment of the

country on the subject. I hope you will dismiss from your mind everything except what is sworn to in the witness box. If you do not, the trial of the prisoner is a mockery, the form of conviction is a mockery, and you are convicting the prisoner before trial I am confident that every one of you wishes to do British justice to the prisoner. We have not been afraid in times past to do right in spite of any threats brought against us, and we should not be afraid to do right now. We had physical courage when our soil was invaded; let us now have the moral courage to acquit an innocent man though accused of a crime against which we have so strong a feeling. It requires moral courage to do this against the sentiment of the country-five times more to nerve them to go to fight and face the cannon shot. In the latter a man knows that he will be buoyed up by the admiration and the gratitude of his country; in the former he is liable to be misunderstood, and his conduct misconstrued. People will say you should have convicted the accused to make an example. You have no right to convict him merely for such a purpose. No man can be found guilty, according to British law, if there is a reasonable doubt of his innocence. I adjure you by your oath, by the eyes of the world which are upon you, that you do your duty. Show the world that we are not only physically brave, but that a Canadian jury is as pure as any the world ever saw. Prove to the world that no Canadian jury can be brought to yield to prejudice. If the prisoner was not a stranger here, totally unfriended and without a farthing, he could have perhaps brought friends and witnesses. But that same strong party who, afraid to come themselves, set on the others and supplied them with the money to fight the battle they were afraid to fight themselves; do you think that those people, if the prisoner was really a Fenian, would leave him without a farthing to defend himself? Is not that one of the strongest circumstances in his favor? If he were one of them they would help him. Gentlemen of the jury, this circumstance I hope you will take into consideration I hope you will give due weight to all the evidence offered in his favor. We do not ask this as a favor, but as justice-British justice. We labor under the great disadvantage of being followed in our remarks by one of the most able and eloquent members of the bar in the country. I hope you will not be led away by the eloquence of my learned friend. However you may admire his speech, however eloquent it may be, hope you will remember those simple facts which no eloquence can do away. My learned friend is on the popular side, and he is known to you; I am a stranger; you have never seen me before, and may never again. But you will go according to the evidence and the facts, and accomplish the duty which you owe to your country, your conscience and your God. The question depends simply upon this are these witnesses for the Crown mistaken, or are they not? I cast no imputation against the desire to do right on the part of any of these gentlemen, except that miserable common informer. All the rest, I have no doubt, said what they believed to be fact. But in point of fact they are mistaken as to the identity of the prisoner. They are mistaken in saying he was where they say they saw him, because he was in Buffalo at the time. A number of the officers had swords, such they describe him to have had. Some of the officers are proved to have strongly resembled him. Another circumstance shows the witnesses to be mistaken. You see the prisoner's beard The reason he wears his beard as he does now, is that he foresaw that witnesses would be likely to mistake him for others, and he let his beard grow. When he was taken prisoner, he had nothing but a small imperial. Again, the man whom the witnesses saw had his hat on, and his forehead, of course, concealed. But the distinctive feature of the pris oner is his forehead, and no man would have a distinct idea of him without seeing it. Molesworth, the younger, said in his evidence that the prisoner then had a beard exactly like that he has now, except that it covered more of his face then. It was proved that there was a captain there who had a beard covering more of his face and a dark coat, as the prisoner is said to have had. This is the man whom these witnesses saw. All these witnesses have made the mistake of taking for the prisoner a man of the same height and general appearance, but with a larger beard than he then had, but similar to the one he wears now. A corroborating circumstance is that the prisoner is proved not to have been across the river at the time he is said to have been seen by the witnesses; two witnesses prove that he was in Buffalo at that time. He is said to have been recognized early in the morning on the Canada side; but be did not leave Buffalo till noon. The witness Newbiggen says that he addressed the prisoner as Colonel Lynch, and was not corrected; but there is nothing to prove that he addressed

now.

him so.

Messrs. CAMERON and COCKBURN. Yes; he swears it.

Mr. MARTIN. At all events, no Christian name was given. Lynch is a common name, so common in the States that lynch-law is taken from it. There may have been a Colonel Lynch there who was not the prisoner. Among 1,000 or 1,500 men there might be several Lynches. The witness may have imagined that he heard the name of Lynch given to the man he saw, hearing afterwards that there was a person of that name. It is not likely that, under the circumstances, he would have taken notice of the particular name. When told that there is a Colonel Lynch to be identified, he thinks that that must be the man he saw, and gradually he works his mind up to the idea that he remembers the name and recognizes the man. It is easier to believe this explanation of his evidence than that other witnesses have committed deliberate perjury. There is nothing to be gained by the witnesses for the defence in giving their testimony in favor of the prisoner. If you believe their testimony, you must bring the prisoner in not guilty. But, even if you reject it, the

case is doubtful, and you must give the prisoner the benefit of the doubt. I shall leave the case in his lordship's hands, with this simple, sóle, and solemn entreaty, that you will divest your minds of all prejudices, and if you see that there is reasonable doubt of the prisoner's guilt, that you will, according to your oath, give him an acquittal.

Shortly after two o'clock the solicitor general, the Hon. Mr. Cockburn, rose to reply on behalf of the Crown. In opening his speech he attested the effective manner in which the prisoner at the bar had been defended by his counsel, who had displayed great zeal and mgenuity in his defence. He (Mr. Cockburn) bore testimony to the fact, that all the expected zeal and anxiety to bring out every point that could possibly bear in favor of the prisoner had been exercised by the counsel for the defence. The prisoner could not say, at all events, that he had been hastily tried, and that his case had not received every defence at the hands of his counsel. I am also glad (said the solicitor general) that the learned gentleman conducting the case on behalf of the prisoner had stated that every opportunity had been afforded him by the prosecution; that there had been nothing he had said during the trial which pointed to any desire that the prisoner's cause should be prejudiced with the jury, and that everything had been done to secure a fair and impartial trial. Those engaged in the prosecution desired nothing more. They desired that everything that can be suggested in favor of the prisoner should be entertained and carefully dealt with by them. They felt that the prisoner was undergoing a trial in which his life may be forfeited.

It is a painful duty for me to engage in a prosecution which might have such serions results; it will be a painful duty for his lordship on the bench; and it will be an especially painful duty for the jury, who would have to take the evidence into consideration, particularly if, after hearing the case, it should be their duty to find a verdict against the prisoner. Notwithstanding that there are all these consequences to be looked to, however, we feel that the duty must be performed. A great outrage against the laws of this country and against society has been committed, and thus it is necessary, both for the punishment of crime and the protection of the country against incursions of the same nefarious character, to vindicate the law without regard to any feeling of false sympathy on the one side or fear on the other, that it might be understood that in this court the law must be carried out, and that the decision of the jury will also be carried out with the same firm regard to perform their duty, having a view to the evidence before them, in the same way as their duty had been performed by them. The learned counsel for the prisoner in the first place has claimed that his client had not been charged properly in the indictment. He claims that he was not a citizen of the United States, while as such he was charged with having entered the province to commit acts of hostility against the province. He says that he is not a citizen, but a British subject, and having once been proved a British subject, he must be one always. In the first place, without regard to the question that the case came properly within the strict meaning of the law, I contend that the law proposes to deal with certain persons who came to this country, be they subjects or citizens of a state at peace with England; and the prisoner himself has, in his own language, specially claimed that he came in that character in his letter which was laid before us. If he came to Canada, as he stated, a peaceable American citizen, without any hostile intent, he told us that he was an American citizen, and we had a right to charge him as such because we had it in his own handwriting. The character of citizen is, therefore, all we require to prove. It is of no consequence whether he was, or is, & British subject. Great Britain, although assenting to the general principle that a man cannot throw off his allegiance, allows any one who may take up his residence in a country, his choice whether he will become a citizen; and any person is a citizen of the United States who has resided there for any length of time, and who has acquired the right of protection; and we know very well that he came from the United States; we have it, as I have said, in his own handwriting, and I feel that that evidence must be admitted as suffi cient to prove the charge as laid in the indictment, and he is placed in that character before you, as a citizen of the United States. The learned counsel for the prisoner has stated, as a further point-not with any idea that it can appear on your minds as any defence to this indictment, but still with the view to prejudice your and the public mind--that the prisoner has been indicted under an ex post facto law; that is, that the law has been made since the crime was committed. I have to state that this is not the case. I state it with all confidence and I am sure his lordship will confirm what I state-the prisoner is tried under a law which has been in existence for twenty-five years. The one referred to by the counsel for the prisoner does not apply to his case in this prosecution. Now, gentlemen of the jury, with regard to the evidence, I am sure that I am stating the opinion of almost every person who has attentively listened to the facts submitted on both sides, when I say, although I regret to say so, that more conclusive testimony could scarcely have been asked for than the evidence of the five witnesses who have been called for the Crown; every one of whom identifies the prisoner as the person they saw at Fort Erie, commanding the men and giving directions to the Fenian forces. Every one of these individuals occupied superior stations in life, and they are such as would banish from your minds at once any idea that they were incapable of properly attesting to the statements they made. Indeed, it is not contended that there was any intention on their part to say one word that they did not perfectly believe in their own minds to be the truth. That being the case, you must remember that every one of them was questioned closely, and all proved most conclusively what his opinion was; and every one stated that beyond any doubt on their minds the

prisoner was the man they all saw at Fort Erie on the 1st and 2d of June. To rebut that testimony the learned counsel has asserted that the prisoner had come as a newspaper correspondent. But if this story-ingeniously stated-is true, if it was in that capacity he came, we might have expected, at any rate, that there would have been some proof from his employer. That individual who obtained him is not brought here. We have it from no one's lips that he came over here in any such capacity; and, excepting his own statement, we are not at all made aware of the fact. He stated to other persons, some of whom have given evidence, that that was his object in coming here. We have, however, as I have stated, no other evidence, and his own statements do not amount to evidence. It was an easy matter for him to have brought the editor or proprietor for whom he intended to report the proceedings. Then, gentlemen, it has been, suggested by the learned counsel that the witnesses called for the Crown were mistaken; that it was a question of disputed identity; that they must have been wrong. They said that he left Buffalo at a later hour. Our witnesses say that he was seen at Fort Erie between 8 and 9 a. m. with his command, drilling his men. They say that he did not leave Buffalo till noon. They bring a cab-driver who carried him from one place to another; therefore they say, "Your witnesses must be mistaken, when they say that they saw the prisoner at that early hour, because he was in Buffalo." But what do we find? They themselves call a witness who says that he saw him at Fort Erie at eight in the morning, and this confirms the evidence of witnesses for the Crown. That then must break down. We must then look to the character of all the witnesses. They are all naturally inclined to save the life of their fellow culprit. They have an anxiety to procure his acquittal for their own sakes, for they know how it will affect the prosecution over their own heads. They know that if acquitted he would be able to give assistance to all of them. There is the motive. We cannot suppose, at the same time, that men will go into the witness box and commit the crime of perjury without a motive, like the witnesses for the defence. The Fenian prisoners, as I have said, have a desire and anxiety to procure the acquittal of their comrade, holding, at the same time, that it will appear in their own favor. Now, on our side there can be no sensible motive which can instigate gentlemen for the Crown to say one word to increase the difficulties which the prisoner labors under in meeting the charge. The learned counsel for the prisoner complains, to a certain extent, that he has been trammelled, because, he says, he has not been able to call witnesses who could have proved that the prisoner's occupation and object in coming here were different from that charged against him. I think you will see at once that it is an extraordinary proposition to make. He has mentioned that an individual named as a leader of the party, and to whom the name general was given, one O'Neil, should be expected to come and get protection from our courts of law without being held responsible for the crime which he has committed himself-which perhaps he might have led others to commit, and in which he was the principal participant. It would be a monstrous proposition; it could not be done. In the first place, it would be contrary to law, and therefore the mere mention of such a thing is not reasonable in this trial. Nor could the governor-general even furnish the desired permit. It would be, I hold, entirely without precedent. But if it was supposed that General O'Neil's presence was to benefit the prisoner, if he could for a moment obtain the assistance of General O'Neil, why did he not obtain this assistance before, or by answer to his letter? It is very singular that the letter seems to have remained unanswered. General O'Neil, so far from evincing any desire to answer it, seems to have treated that application with that neglect with which, no doubt, he is quite prepared to treat all similar applications. Now, gentlemen, it seems to have been contended by the learned counsel that the mere positionif that itself were proved to your satisfaction-which the prisoner has claimed, that of a pressreporter, should be sufficient to save him from the consequences of his crime. I beg to differ from this altogether. I beg to say that there can be no difference at all; that if they chose to go in company with any unlawful band in any enterprise of this kind, they are responsible. If they chose to go and give aid and countenance, they became themselves parties, and parties so charged are amenable to all the consequences of the acts of the Fenians themselves. It is the law in the case of those who levy war against the Queen, or those who are found with them. All parties assembling with the rebels are held to account. It matters not in what way they are found, or in what capacity, if found aiding and countenancing them, they are equally guilty. Now, gentlemen, it is somewhat strange; the learned counsel has put the case for the prisoner in as strong light as he can; but yet, after looking at the evidence, there is sufficient evidence, without relying on a single witness called to prove the case for the Crown-there is, I say, evidence enough on their own side to convict the prisoner. We find, from the statement made by O'Malley, that the prisoner admitted to him that he came from Louisville with a band of Fenians. We have evidence by one of their own witnesses to prove that on Friday he was in company with the Fenians who crossed, and we know he was found on Saturday, the 2d day of June, having stayed all night and until he was arrested, after the Ridgeway affair had taken place, and after that outrage had been committed. Now, I say that the evidence of these two Fenians is sufficient alone, without relying at all on the evidence of the Crown, to warrant the conviction of the prisoner. The question is, can you have a reasonable doubt in your minds about his being the man? Do you suppose it possible, in the first place, that there were two men of the same name and holding the same rank? We know that Newbiggen was taken to Colonel Lynch when he went to ask a question about his horses. They directed

him then to Lynch. He went to Colonel Lynch and addressed him as colonel. If he did not belong to them, or objected to be called by that name, he would have said so. Now, you must believe Mr. Newbiggen or not; but was there anything in his mode of giving evidence which led you for one moment to doubt his truth? The question comes, therefore, to this: Have you any reasonable doubt that the prisoner was with those persons who crossed that he was in company with them, aiding and helping them in the unlawful enterprise? We find him there; that is adduced in evidence. We have evidence that he came with the body of Fenians. We find that he remained with them in this country from the morning of the 1st of June till the afternoon of the 2d June. We find he was aiding with General O'Neil and with the body which he accompanied, and were engaged in hostilities against the inhabitants of this country. It seems to me that upon these facts you can be fully justified in returning your verdict for the crown. I shall leave this case in your hands, subject to his lordship's charge.

The learned judge followed, addressing the jury. He said:

GENTLEMEN OF THE JURY: You must not allow your minds to consider as to the consequences of your verdict in the matter laid before you. You have nothing to do with that, and you should dispossess your minds as far as possible of all thoughts of such, and any prejudice that may have arisen from the cause that led to the trial. Now the case presents little more, indeed no more, difficulty than an ordinary criminal case. The Crown asserts certain theories, with evidence, and these theories are disputed by the defence. Now the Crown starts at this: that war was levied on her Majesty; that the prisoner was among those armed on that occasion. That war was levied has been proved. The defence says that he was there in another capacity, of which I shall speak presently. Now the Crown undertakes to identify him as being there. The theory of the defence is that they were mistaken in the man, and that the prisoner was not there at the time the principal witnesses speak of him as being in company with them. That is the way they put it. Now you are shown by Mr. Dixon and Mr. Schofield, and they all show you that our troops were out at that time with those persons with whom this prisoner is charged with being associated before coming in contact with the troops; that they took prisoners of some of these; that they were in battle array, marching in military order. These were circumstances which were necessary to be stated as proving the levying of the war. Now, as the Crown has satisfied you on that point, do you find that they were armed against her Majesty with the intention of overthrowing the government of the country? Now you can find that upon the evidence of the parties clearly. They were there in arms against her Majesty, and they did all that the levying of war required, and got the consequences which the levying of war could give. This is the first point. Now the next is, whether the prisoner was not in command there. There is the evidence of Newbiggen to that effect. He had been to the Fenian camp, and seems to give a very fair account of what he had seen. He saw them march down as military men do. Some of them were in civilians' clothes; more of them were in uniform. Some of those in command had swords, although not acting in command there at the time. They came and pitched their camp near his father's farm. They took his father's sheep and lambs, and also his horses. That led him to come down, for he says that when they came down they had neither horses nor other animals, and after they had been there and stole them they had horses. With a view of getting them to take care of the horses he went down, and saw the prisoner in command. He says that at that time they had pickets to guard the bridge near their camp, and other evidence of military life. He proves these facts, which was further proof that they were then in arms. He says he asked for General O'Neil or Colonel Hoy; that they said that O'Neil was at Fort Erie; that Hoy was away, and they referred him to Colonel Lynch, and that he was shown the prisoner as Colonel Lynch. He addressed him as such. He answered as Colonel Lynch. He says he then had a sword slung by a belt to his side. Now there is the first point. He says that the prisoner was the man, and that the time was about three in the evening. Then there is Murray, who says he saw him on the 2d June, at their place, early in the morning; that while standing near his house the prisoner was passing and halted to speak with him and two men that were there; that it was close to their yard; that he waited till the column had passed, and then he went up to catch it: that he had a sword with a steel scabbard. The younger Molesworth speaks very positively on the point, and says that he had on a black felt hat, flat in the crown, such as commonly worn: he had no other uniform on. The older Molesworth does not speak so positively, but he says he has no doubt of his being the man he saw there. Then against these witnesses the defence says nothing. Stevens was there and did not feel very well pleased, and states that this prisoner was the man that made him get into the ranks; that he was taken down about a quarter of a mile and there dismissed. [Other witnesses were quoted to show similar facts.] They were marched out at eight or nine o'clock in the morning. Another witness, Murray, saw Lynch first in the morning and then in the evening; he says that on both these occasions he had no doubt that the prisoner was the man he saw. These are the people that speak of his identity. This proves that there was war levied; that the prisoner was acting in command levying war against her Majesty. As to the other point, the letters given claimed that he came as an American citizen, and that they took him at his word because he so represented himself. Now, in regard to that point, a good deal of questioning has arisen formerly; but although the theory of our law is, "once a subject always a subject," the practice has grown up that the Crown of England does not prevent its subjects