I do not think it necessary to call your special attention to any of these cases now, but if you find any difficulty in dealing with any of them you can apply to the counsel for the Crown or to court, and you will be advised in the matter.

I am sorry to say I find a very long list of about ninety cases of a very unusual character, in which most of the accused are said to be citizens of the United States, but a few are alleged to be subjects of Great Britain. These cases arose from an armed invasion of this province, which is charged to have taken place in the night, between the first and second days of June last, by an organized force, computed at between five and six hundred men, who crossed the Niagara river from the State of New York, and landed in this province about a mile below Fort Erie, and remained there about a day, It is alleged that the prisoners now here were of this expedition, and were captured in that neighborhood after the principal force had returned to the State of New York.

You are aware, as matter of history, that for some years a conspiracy has existed in Ireland, having for its object the overthrow of the Queen's government there, and the establishment of a republican government in its stead. For this purpose illegal associations called Circles of the Fenian Brotherhood were formed, with power indefinitely to increase their numbers. These circles were not confined to Ireland but extended to the United States of America, in which, more especially during the last quarter of a century, a vast emigration from Ireland has settled.

These emigrants readily accommodated themselves to the circumstances of that republic, and by their industry and their numbers have acquired, in many of the States, both social and political influence; but wherever they have gone they never forget their kindred and their country. In their new homes they retained, with deep devotion, the memory of her music, her songs, and her scenery, and have cherished with intense feeling the undefined belief that Ireland had been wronged, and that the blight of the wrong still rests upon her.

To these people, and to those who sympathized with them, the chiefs of this conspiracy in Ireland looked for material aid; and it is no matter of surprise that among such a people Fenian circles should have been formed with great alacrity and success, and that enormous sums should have been contributed for its object. So far as we know, until the end of the late rebellion in the United States, Ireland was the only place where an armed resistance to the British government was contemplated.

About the period of the close of the civil war a division of the Fenian Brotherhood is said to have taken place. Soon after, it was said, that one part adhered to the original scheme of making war in Ireland, the other to making an invasion of the British American provinces for two objects: one to make them the base of operations against the Queen's government in Ireland; the other to annex one or more of these provinces to the United States. To us, who know well the spirit and temper of our people, the scheme in either view seems visionary and impracticable, but it found ready sympathy among that large portion of the American people who think that England acted in bad faith in regard to acknowledging belligerent rights to the southern confederacy, and in allowing those ships to leave her ports which that confederacy cominissioned to prey upon the commerce of the United States.

With this class, quite apart from the ultimate objects of the Fenian conspiracy, the proposal to invade the provinces found cordial co-operation, for they hoped that the United States would accord such belligerent rights to the invaders as would enable them to commission ships to prey upon the commerce of England just as the south had done upon American commerce. Nor are the sympathy and co-operation of the American people less for a scheme which would annex these provinces with the States of the Union.

The native-born citizen of the United States seems earnestly impressed with the belief that the American type of a republican government is the very best; he seems to take it for granted that rational liberty can be enjoyed under no other, and that all nations would eagerly adopt it if they had the opportunity of shaking off the governments which oppress them. He appears to discredit the fact that under a monarchical government it is possible to enjoy freedom, less tran melled by the tyranny of office and party, than under a republican gov ernment. He thinks it impossible that here we can be really devoted to our beloved sovereign and her government; a government which he affects to think is overbearing, perfidious, and envious of the power and greatness of the American nation.

Unfortunately for our peace we have been reaping the fruits of these opinions. Some of the really well meaning of the American people, many of the unthinking, and a vast number of those who entertain the opinious to which I have just referred, have given their countenance, co-operation, and aid to this Fenian conspiracy. Nor is it at all improbable that the leaders of the two great political parties, into which the United States is now divided, have countenanced the enterprise which they know cannot be successful on the one hand, to obtain the political support of those engaged in the conspiracy where it has usually been given; and on the other band to divert to the other party.

Profesing, as the American people do, to be a people who respect themselves; professing to be a nation which respects national rights, it seems a matter of amazement that this conspiracy, whose objects have been loudly proclaimed, has not been pounced upon by the American people, and denounced by their press as an atrocity, especially upon us, which has no parallel in ancient or modern times, and as one dangerous to their own peace; for an organization formed to commit atrocities in one place may, by an easy transition, become one to commit outrages in another place to which its direction may be turned.

I mention these things to dispel erroneous opinions respecting the events which underlie and surround your inquiries on the present occasion, which, for any other purpose, would be out of place here, but they extenuate rather than aggravate the conduct of those men whose imputed crime will form the subject of your investigations. The accused are said to be chiefly of that young, reckless, unthinking class, but in part of an older and more depraved one, which are seen in the principle cities of the United States, and probably most of them joined this nefarious enterprise with the approbation of those to whom they naturally looked up as a cause worthy of true manhood, the prosecution of which would yield at least excitement, and its consummation applause and renown.

These considerations, and others which they suggest, will, I hope, tone down your minds to judicial calmness in the investigations now to come before you. Remember the law presumes these men are innocent, and your duty is to consider them so until, by legal evidence, their guilt appears.

They are charged with having feloniously entered Upper Canada on the first and second days of June last, with intent to levy war against her Majesty, and with being found in arms against her Majesty here. As you will presently see, they might have been tried by a militia court-martial, but it is better that they should be tried here by the ordinary course of law, for, excepting the late invasions and the continued threats of their repetition, we are and have been in a state of profound peace. Moreover, war, its usages and tribunals are alien alike to our agricultural and commercial people, who would have been shocked when they reflected upon it, that men should have suffered death upon the sentence of a courtmartial.

The statutes against which it will be charged they have offended is the 22 Vic., cap. 98, a consolidation of the 3d Vic., cap. 12, as amended by the 29 and 30 Vic., cap. 4. It enacts, 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 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 court-martial for the trial of such persons agreeably to the militia laws; 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 second section enacts, that if any subject of her Majesty within Upper Canada levies war against her Majesty, in company with any of the subjects or citizens of any foreign state or country then at peace with her Majesty, or enters Upper Canada with any such subjects or citizens with intent to 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 to be tried and punished.

The third section enacts, that 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 hereinbefore contained, be prosecuted and tried before any court of oyer and ter miner 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 felou.

By the act 29 and 30 Vic., chap. 4, the 3d section just quoted was repealed, and the fol lowing is to be taken and read as the 3d section of the first-mentioned act: Every subject of her Majesty, and every citizen or subject of any foreign state or country, who has at any time heretofore offended, or may at any time hereafter offend against 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.

Now there is nothing in these trials to involve them in doubt or uncertainty. The simple question is, whether these men, or any of them, entered or continued within this province contrary to the provisions of these statutes. In these cases, as in all others where the intent is a material question, it may be proved by declarations of intention or inferred from acts, for the general principle is that a man intended to do what he has done.

The counsel for the Crown must prove to your satisfaction that war was levied and men were in arms against her Majesty contrary to the statute, and that the parties accused were engaged in it or associated with those who were.

In case they are charged as American citizens there must be evidence which satisfies you they are such citizens. If they are charged not as American citizens the presumption is that they are her Majesty's subjects until the contrary appears, and it will not probably be denied that they are subjects of her Majesty.

I shall abstain from alluding to what was done after war was levied, for except as affording evidence of intention it is not the substantive offence charged upon these prisoners, and

your feelings ought not to be excited by unnecessary detail, lest you be unfitted for calm inquiry. In these cases, as in all others, the Crown undertakes to bring before you evidence to satisfy you of the guilt of every man accused. If it does not, ignore the bills. Do not hesitate a Better for the guilty to escape than the innocent suffer. Better that no trial take place, which would result in acquittal, or that the administration of criminal justice should be tarnished with the stain of a conviction which the law would not sustain.

moment.

As the good people and true, from among whom you came, were above the meanness of fear when in the midst of danger and conflict, and were ready sternly to defend their homes and to repel aggression, so now let the feeling of resentment find no place in your minds in the inquiries upon which you are about to enter, and thus show that you can administer law in its pure and benign spirit.

In this way alone can you acquit yourselves with credit and approbation in the sight of good men, and satisfy your own consciences in the sight of Him before whom all hearts are

open.

You will now retire, and I am confident that you will inquire earnestly and seriously into every case submitted to you.

Several undefended civil cases were called and disposed of. On calling the remaining civil cases it was found, as is usual on the first day of the court, that the counsel were ready with few or none of them.

The court adjourned at half-past four to sit again at ten this morning, previous to which his lordship will sit in chambers.

No. 97.]

No. 48.

Mr. F. W. Seward to Mr. Thurston.

DEPARTMENT OF STATE,

Washington, October 19, 1866. SIR: Your despatch, No. 131, enclosing the charge of Judge Wilson to the grand jury, and relating to the subject of defence of the Fenian prisoners in Canada, has been received and considered.

Referring to your No. 127, on the same subject, to the department's reply of October 2, (No. 94,) I have now to instruct you, that in view of the additional facts given, you are authorized to employ counsel at reasonable rates to defend the prisoners, in cases in which it seems essentially necessary on account of the inability of the accused to do so. You will make report of your proceedings to the department.

I am, sir, your obedient servant,

U. S. CONSULate, Toronto, October 22, 1866.

SIR: I have the honor to acknowledge the receipt of your telegrams of the 19th instant, authorizing me to employ counsel at reasonable rates, to defend the prisoners arrested and confined in jail here on suspicion of being concerned in the Fenian raid. Several of the prisoners had been indicted and arraigned before the receipt of the telegram, and their trial had been postponed until some day this week. On Saturday morning I was in court when some six more men Ex. Doc. 42- -4

were arraigned. Among the number was a boy named Benjamin Perry, about 16 years old. The judge asked me if this boy had any counsel to defend him. I answered that late the evening before instructious had been received from the Secretary of State to employ counsel to defend these citizens of the United States who were unable to procure counsel for themselves. The judge expressed himself gratified at this announcement, and offered me every facility within the power of the court to aid the prisoners in their defence. Some days since I had an interview with the Crown counsel in relation to the appointment by the court of some person to defend the prisoners on their trial. He stated that as there were so many that would probably be indicted, he did not think the court would be willing to impose so great a responsibility on any member of the bar, and did not think any gentleman would accept it. When, therefore, I visited the jail on Saturday, in company with Mr. George Murphy, and announced to the prisoners that I had received instructions to employ counsel for all who had no means to employ counsel for themselves, it was received with almost as much gratitude as if told they were to be liberated. Many of them are ragged and entirely destitute of means, and if they have any witnesses in the United States, could not avail themselves of their testimony, as they have no money to pay their expenses to Toronto. Most of the prisoners claim to be citizens of the United States, or soldiers in the army. I have felt it to be my duty to include all those who have fought in the Union army, as citizens, and should, unless further instructed, employ counsel for their defence.

I have not yet received your despatch of the 19th instant, mentioned in your telegram.

With great respect, I am, sir, your obedient servant,
D. THURSTON,

Hon. WILLIAM H. SEWARD,

Secretary of State, Washington, D. C.

United States Consul.

No. 50.

Mr. Thurston to Mr. Seward.

No. 134 bis]

UNITED STATES CONSULATE, Toronto, October 25, 1866. SIR: I have the honor to inform you that I have retained Kenneth McKenzie, esq., Q. C., to defend the prisoners now confined in jail here. Of the whole number of persons charged with being concerned in the Fenian raid, some 55 claim to be American citizens, or have been soldiers in the army of the United States. All the prisoners indicted up to the present time are indicted as citizens of the United States, and I herewith transmit the form of the indictment, which is the same in all the cases. Many of the prisoners, as I have already informed the department, are very young, and who have resided in distant States of the United States. They are entirely destitute of means, either to fee counsel or to pay the expense of witnesses for their defence. Some of the prisoners can prove their citizenship, and others say they will be able so to do if they are allowed sufficient time to obtain the necessary evidence. I have, in view of all the circumstances of the case, thought it expedient to defend all those who may be indicted as citizens of the United States, all who can prove they have been soldiers in the army, and those who prove their citizenship. In this view I have been supported by Mr. H. H. Emmons, of Detroit, who arrived in Toronto to consult with me on Tuesday last. On the 22d instant I received the enclosed telegram from Mr. Emmons, which I answered by asking him to come to Toronto.

On his arrival here we called on Messrs. Murphy, the attorneys, and Mr. McKenzie, the counsel. The whole subject was discussed, and it was decided to send for such evidence from the United States as could be made effective in the defence on the trial. The prisoners with a few exceptions had made no preparations for their trial, and as the court is now in session, and the trial of those indicted has already commenced, it has rendered it necessary that immediate steps should be taken to place all the cases in the proper attitude for trial. The arrangement as to the payment of counsel was, that after the trials the fee might be determined by myself and Messrs. Murphy; and as it was impossible to determine how many would be indicted, and placed on trial, this decision was also concurred in by Mr. Emmons. The statute of 1839, the third section of which was in force until this year, has been repealed by the substitution of the third section of the act of 1866, both of which are enclosed. The trial of John B. Lynch, charged with being a colonel in the Fenian army, commenced yesterday. I have the honor to transmit the report of the trial as given in the Globe of to-day. Lynch was convicted last evening. The judge's charge and pleas of counsel are given in this morning's Globe.

With great respect, I am, sir, your obedient servant,

Hon. WILLIAM H. SEWARD,

Secretary of State, Washington, D. C.

D. THURSTON,

United States Consul.

CANADA, County of York, one of the United Counties of York and Peel, to wit:

The jurors of our lady the Queen upon their oath present, that Patrick Norton, late of Buffalo, in the State of New York, one of the United States of America, and now of the city of Toronto, in the county of York aforesaid, being a citizen of a certain foreign state, to wit, the United States of America, at peace with her Majesty the Queen, with force and arms heretofore, to wit, on the first day of June, A. D. 1866, and while the said foreign state was so at peace with her said Majesty the Queen, at the village of Fort Erie, in the county of Welland, in that part of the said province called and being Upper Canada, with divers other evil-disposed persons, whose names are to the jurors aforesaid unknown, did unlawfully and feloniously enter that part of the province of Canada called and being Upper Canada aforesaid, with intent to levy war against her said Majesty the Queen, contrary to the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present that the said Patrick Norton, being a citizen of a certain foreign state, to wit, the United States of America, at peace with her Majesty the Queen, heretofore, to wit, on the 2d day of June, A. D. 1866, and while the said foreign state was so at peace with her said Majesty the Queen, with force and arms, in the county of Welland, in that part of the said province called and being Upper Canada, having before that time joined himself to, and being then and there joined to divers other evil-disposed persons to the jurors aforesaid unknown, was unlawfully and feloniously in arms against our said lady the Queen within Upper Canada aforesaid, with intent to levy war against our said lady the Queen, contrary to the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Patrick Norton, being a citizen of a certain foreign state, to wit, the United States of America, at peace with her Majesty the Queen, heretofore, to wit, on the 2d day of June, A. D. 166, and while the said foreign state was so at peace with her said Majesty the Queen, with force and arms, in the county of Welland, in that part of the said province called and being Cpper Canada, having before that time joined himself to and being then and there joined to divers other evil-disposed persons to the jurors aforesaid unknown, who were then and there lawfully and feloniously in arms against our said lady the Queen, did unlawfully and feloniously commit an act of hostility against our said lady the Queen within Upper Canada aforesaid, in this, that the said Patrick Norton, on the same day and year last aforesaid, in the county of Welland aforesaid, together with the said evil-disposed persons, armed and arrayed in a warlike manner, feloniously did assault and attack certain of her Majesty's liege subjects in the peace of our lady the Queen, then and there being, with intent to levy war against our said lady the Queen, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity.