No 100.] No. 55. Mr. F. W. Seward to Mr. Thurston. DEPARTMENT OF STATE, SIR: Your despatches Nos. 134 and 138, with regard to the Fenian trials, have been received. Your action as given in No. 134 is approved. Your general proceedings, as given in No. 138, are approved. As to the question whether Mr. Devlin shall act as counsel to the prisoners and how far he shall act, it must in each case be left to the accused to determine. You are instructed to furnish legal assistance to Messrs. McMahon and Lynch at the expense of this government. You will also endeavor to procure and send to this department some written testimony tending to confirm their statements. You will, of course, see the necessity of giving the matter immediate attention. I am, sir, your obedient servant, D. THURSTON, Esq., United States Consul, Toronto. F. W. SEWARD, No. 140.[ No. 56. Mr. Thurston to Mr. Seward. UNITED STATES CONSULATE, SIR: I have the honor to enclose a copy of a telegram received yesterday for W. R. Roberts, New York. I respectfully ask instructions in this matter. I also enclose the reports of Mr. McKirwin up to to-day. I have not yet received the copy of the records from the county clerk. I am, with respect, your obedient servant, Hon. WILLIAM H. SEWARD, Secretary of State, Washington. D. THURSTON, United States Consul. Mr. Roberts to Mr. Thurston. [Telegram.] NEW YORK, November 9, 1866. B. Devlin, barrister, Montreal, is engaged by me to defend all prisoners held in Canada as Fenians. You will please see that he is not obstructed by other counsel. Shields has made matters satisfactory. W. R. ROBERTS. TORONTO, March 8, 1866. SIR: I have the honor to inform you that Wm. Slaven was yesterday tried before the honorable Mr. Justice John Wilson, for complicity in the Fenian raids, and that the jury having returned a verdict of guilty, sentence of death was passed on the prisoner. The evi dence upon which Slaven was convicted was very slight, and the judge charged the jury pretty strongly against the prisoner. I took several legal exceptions to the judge's charge in this case, which were overruled. I beg to enclose herewith a copy of the exceptions. On the verdict being returned, I moved in arrest of judgment on the following grounds: First. That it appears on the face of the indictment that the offences charged therein against the prisoner were committed in the county of Welland, and the indictment, therefore, could not be legally preferred against him under the statute 29 and 30 Vic., cap. 4, sec. 3, in this court, it being a court for united counties, the authority of the statute being restricted to single counties, and that the indictment and verdict are illegal. Second. That the prisoner is charged in the several counts of the indictment with offences different from those created by the statute against citizens of a foreign state and unauthorized by the statute against such citizens. Third. In the third count the prisoner is charged with having committed a direct act of hostility against the Queen, an offence not mentioned in the statute. Fourth. That it appears on the face of the indictment that the offence charged against the prisoner was committed on the 2d day of June last, before the passing of the act 29 and 30 Vic., cap. 4. I have also the honor to inform you that Patrick Magrath was this day tried before Mr. Justice Wilson, upon a charge similar to that upon which William Slaven was convicted, and that the jury returned a verdict of "not guilty." I have the honor to be, sir, your obedient servant, D. THURSTON, Esq., United States Consul, Toronto. K. MACKENZIE. EXCEPTIONS. 1. That his lordship should have directed the jury that in law there was no evidence that the prisoner was an American citizen, within the meaning of the act, and that the Crown should show what constitutes a citizen of the United States, according to the laws of the United States. 2. That he should have directed the jury that there was no evidence that the prisoner entered Upper Canada with others with intent to levy war against the Queen, or entered it at all with others; consequently he could not be convicted on the first count. 3. That he should have directed the jury that the prisoner could not be convicted on the second count unless it were proved that he took up arms or was in arms, or was actually armed in company with others in Upper Canada-with intent to levy war on the Queenpresence without being armed being insufficient. 4. That he should have directed the jury that the prisoner could not be convicted on the third count unless the jury found that the prisoner committed a direct act of hostility in assaulting or attacking, with other persons armed and arrayed in a warlike manner, certain of her Majesty's subjects with intent to levy war against the Queen; that the prisoner must have been present during an attack, and taking a part, before he would be guilty on the third count. 5. That he should have told the jury that the prisoner could not be convicted on the present indictment for being present, aiding, assisting and comforting the alleged raiders, as there is Do count in the indictment charging him with such an offence. 6. That the prisoner being charged in the indictment as an American citizen, no duty was east on him to withdraw or give notice when he found a breach of the law was contemplated, although it might be otherwise if charged as a British subject, and that there is evidence he withdrew when he found the laws about to be violated." 7. That he should have directed the jury that unless there was evidence to show or from which they could infer an intent on the part of the prisoner to levy war against the Queen, he could not be convicted on the present indictment. 8. That there is no legal evidence to show that the prisoner or the persons assembled at Fort Erie, on the first and second of June, intended to levy war against the Queen, and for all that appears in evidence their object might have been the redress of a private grievance, which might be a great riot, but not a levying of war against the Queen, and that he should have directed an acquittal of the prisoner on the ground that there is no evidence to show the intention alleged in the indictment, and that the prisoner cannot be convicted without proof that the prisoner intended with force to dethrone the Queen, destroy the government, or subvert some public law or institution, or to effect some public object, and that he should have explained to the jury what would constitute levying war against the Queen. 9. That the imperial act 11 and 12 Vic., cap. 12, providing for offences against the Queen similar to those alleged against the prisoner, must override the provincial act, which was passed previously to it, and under which the prisoner is being proceeded against. Mr. Mackenzie to Mr. Thurston. TORONTO, November 10, 1866. SIR: I have the honor to inform you that Daniel Drummond was yesterday tried before the honorable Mr. Justice John Wilson for complicity in the Fenian raids, and that after a trial occupying nearly the whole of the day the jury returned a verdict of "not guilty." and the prisoner was immediately discharged from custody by the court. Although the evidence against the prisoner was not at all conclusive, the judge's charge was pretty strongly against him. I have also the honor to inform you that during the progress of the trial the following Fenian prisoners were arranged and pleaded "not guilty," viz: Peter Doyle, Henry Lavelle, David Quin, Barney Dunn, Frederick Fry, James Burke, William Moore, John Gallagher, John Grace, John Moran, Patrick Donoghue, William Baker, and James Spaulding. I moved to quash the indictments against the prisoners above named on the same grounds on which I moved in the case of O'Neill, and on the further ground that it appeared on the face of the indictment that the offence charged against the prisoners was committed before the passing of the statute 29 and 30 Vic., cap. 4. No day has yet been fixed for the trial of the prisoners who were arraigned yesterday. I have the honor to be, sir, your obedient servant, D. THURSTON, Esq., United States Consul, Toronto, C. W. K. MACKENZIE, No. 142.] No. 57. Mr. Thurston to Mr. Seward. UNITED STATES CONSULATE, SIR: I have the honor to transmit the reports of Mr. Mackenzie up to this date. In accordance with the instructions contained in your No. 100, I have instructed counsel to move a new trial in the cases of Lynch and McMahon, and the necessary affidavits for that purpose are now being drawn up. Among the number of persons acquitted and discharged are many who are entirely destitute of means to procure even a meal or a night's lodging. One person, by the name of Flanagan, who was discharged by the authorities, was in the last stages of consumption, and so reduced that I was obliged to detain him here five days before sending him home. When he came to this consulate he had no money, and was scarcely clothed sufficiently to keep him warm. Dying with consumption, without money or friends, I sent him to a comfortable lodging. house, and paid his board there until he was able to go home, and then paid his passage to Cincinnati. When arrested the prisoners had everything they possessed, except their clothes, taken from them, and only in a few instances, as they informed me, has their money or effects been returned. I do not feel myself able to provide transportation for these poor fellows to their homes, and yet they are so destitute that it seems imperative some provision must be made to assist them after they have been discharged or acquitted. In this country they might starve before the most charitable would aid them. The bishop of Toronto sent to me to-day, asking if some means could not be devised to assist them to the United States. I have already contributed as much as I feel able to do, and yet I would scarcely allow them to remain in the province any length of time after they are discharged. They are in more danger of serious difficulty from absolute want and necessity when discharged than even when arrested for being connected in the Fenian raid. Desirous of serving these men in every way possible, I respectfully ask instructions in this matter. It is reported that after the court of assize shall have adjourned that the prisoners will be tried by a special commissioner. It is understood that the presiding judge, Mr. Wilson, will be appointed the commissioner. I beg the department to understand that I have left no means untried, and spared no pains to get witnesses for the defence of the prisoners, but I am informed incidentally by Mr. Harrison that the government here do not intend to hang those who have been convicted, but to commute the sentence of death to imprisonment in the penitentiary. In addition to the money, &c., taken from the prisoners, I herewith enclose a letter from Daniel Drummond, who claims $20. It appears that the officials here know nothing concerning the money or other articles taken from those who were arrested. I am informed that some party caused a portion of the pocket-books, watches, keys, &c., &c., to be placed in a water-bucket, without being labelled with the owners' names, and sent over from St. Catharine's to Toronto, to the governor of the jail. Very few of the owners have received the property belonging to them. I would respectfully suggest that in the cases of those prisoners who are discharged by the authorities, no evidence having been found against them, should be provided with transportation to their homes by the government of Canada. It seems a great wrong that these poor men should be detained in jail here for six months, on the mere suspicion of the raid, and their money and other valuables taken from them, and then discharged without means to provide their own transportation to their homes, and compelled to claim the charity of their fellowcountrymen, or to demand of me the means to take them to the United States. I am informed that there will be no more Fenian trials at this term. I enclose a list of those prisoners discharged by the government up to yesterday. With great respect, I am, sir, your obedient servant, Hon. WILLIAM H. SEWARD, U. S. Consul. Secretary of State, Washington. Mr. Mackenzie to Mr. Thurston. TORONTO, November 12, 1866. SIR: I have the honor to inform you that William Hayden, one of the prisoners charged with complicity in the Fenian raid of June last, was tried before the honorable Mr. Justice John Wilson on Saturday, the 10th instant, and the jury having found a verdict of "guilty," sentence of death was passed upon the prisoner. I took several objections to the judge's charge, and also moved in arrest of judgment on the same grounds as in O'Neill's case. Before the commencement of Hayden's trial, John Cooney and William Keating were arraigned and pleaded not guilty" to the several charges in the indictment. Their trials were indefinitely postponed. I have the honor to be, sir, your obedient servant, D. THURSTON, Esq., United States Consul, Toronto. K. MACKENZIE. Mr. Mackenzie to Mr. Thurston. TORONTO, November 13, 1866. SIR: I have the honor to inform you that William Duggan, one of the Fenian prisoners charged with complicity in the raid of June last, was yesterday tried before the honorable Mr. Justice John Wilson. The evidence on the part of the Crown having been considered insufficient to support the charges in the indictment, the jury returned a verdict of "not guilty." No witness was called for the defence although four were present to establish the prisoner's innocence and good character. As soon as the jury had rendered their verdict the prisoner was discharged from custody by order of the court. I have the honor to be, sir, your obedient servant, D. THURSTON, Esq., United States Consul, Toronto. K. MACKENZIE. Mr. Mackenzie to Mr. Thurston. TORONTO, November 15, 1866. SIR: I have the honor to inform you that Daniel Whalen was called for trial on the morning of the 13th instant, when the prisoner, under my advice, challenged the jury array, and handed into the court the following challenge: THE QUEEN vs. DANIEL WHALEN. In the court of oyer and terminer and general jail delivery in and for the united counties of York and Peel, the 13th day of November, A. D. 1866. And now at this day comes as well the said John Alexander McDonald, who, for our said lady the Queen, prosecutes in this behalf, as the said Daniel Whalen, in his own proper person, and the jury thereupon empanelled likewise come, and thereupon the said Daniel Whalen challenges the array of the said panel because the said panel was arrayed, returned, and made up by Frederick William Jarvis, esquire, now and at the time of the making of the said array, sheriff of the united counties of York and Peel, from illegal and insufficient petit jury lists, and the said Daniel Whalen shows and states to the court here the following grounds against the legality and sufficiency of the petit jury list from which the said panel was arrayed returned and made up: 1. That the several names inserted upon the said petit jury list from which the said panel was arrayed returned and made up were not selected from the petit jury roll for the year of our Lord 1866, in open court at a general quarter session of the peace for the united counties of York and Peel. 2. That the several names inserted upon the said petit jury list from which said panel was arrayed, returned, and made up, were not selected from the roll of petit jurors at any sittings or at any adjourned sittings of the general quarter sessions of the peace for the united counties of York and Peel, or in the presence of the chairman of the quarter sessions of the peace for the united counties of York and Peel, or in the presence of any presiding member of that court. 3. That the names inserted upon the said petit jury list, to serve as petit jurors for the superior courts in and for the said united counties of York and Peel, were not selected from the roll of petit jurors for the superior courts for the year aforesaid by three or more selec tors, as the law directs, but by a less number than three. 4. That although the court of quarter sessions of the peace for the united counties of York and Peel, held at the city of Toronto, to wit: on the 12th day of December, A. D. 1865, adopted a resolution affirming the expediency of selecting a full jury list for the superior courts for the year of our Lord 1866, still a full petit jury list was not selected. 5. That a great number of the persons qualified and competent for the performance of the duties of petit jurors for the superior courts in and for the united counties of York and Peel, whose names are inserted upon the proper roll of petit jurors for the year of our Lord 1866, for the said united counties, to wit: five hundred names were not proposed for selection or selected and transferred upon the said petit jury list as the law directs, but on the contrary thereof were omitted and left off, and other names were selected and transferred in their place and stead, contrary to law. 6. That the chairman of the quarter sessions of the peace for the united counties of York and Peel, and the clerk of the peace for the said united counties, have not certified under their hands in the jurors' book for the united counties of York and Peel, for the year of our Lord 1866, immediately after such petit jury list; that the said petit jury list from which the said panel was arrayed, returned and made up, was on any day or at any time duly selected and transferred from the proper roll, in open court, as the law directs; and that the said petit jury list is not certified in any manner whatever in the said book by the said chairman and clerk of the peace. 7. That the names and additions of the several persons inserted upon the roll of petit jurors for the superior courts for 1866 were not openly and audibly called aloud, by the elerk of the peace, at any general court of quarter sessions, as being proposed to be selected to serve as petit jurors for the superior courts, and the chairman of the quarter sessions, or any presiding member of that court, did not put to the other selectors the question whether the said names or any of them should be selected for the petit jury of the superior courts, as directed by law, before their names were inserted upon the petit jury list from which the said panel was arrayed, returned and selected. 8. That the said names entered upon the said petit jury list, from which the said panel was arrayed, returned and made up, were not selected and transferred from the proper jurors' roll in the order and manner provided and directed by section fifty-third of the act respecting jurors and juries. The Crown refused to traverse or demur to this challenge, and moved the court to overrule it. After an argument of several hours, the court overruled the challenge. I then tendered the court a bill of exceptions against this ruling, and adduced authorities |