Mr. Smith to Mr. Seward

In the matter of Robert Lynch and Rev. John McMahon, confined in Canada tinder conviction of being participants in the Fenian invasion, the joint resolution of the legislature of the State of Wisconsin recites that there is good reason to believe that, had the prisoners been permitted, on their trials, to have produced to the court such evidence of their innocence of the charges preferred against them as is contained in some affidavits now on file in the office of the Secretary of State of the United States, that said prisoners would have been able to have established beyond any doubt their non-complicity in the Fenian invasion of Canada.

This is a misapprehension. I know of no affidavits containing evidence which, if presented at the trial, and believed by the jury, would have necessarily led to their acquittal. The most they would establish is this, viz., that neither of the parties had been connected with, or sympathized with, the Fenian organization in Canada, this country, or elsewhere, nor did either of them visit Canada with the intent of aiding the purposes of the invaders otherwise than as hereinafter stated. The charge of the judge who presided at their trials was substantially to the effect that, if they accompanied the invaders, the one, John McMahon, being a Roman Catholic priest, for the purpose of administering the consolations of his religion to such of the parties as might require them, the other, Robert Lynch, as a correspondent of a newspaper in the United States, for the purpose of recording their achievements and the incidents of the march, then they were as guilty of aiding and assisting in the levying war on her Majesty as other persons of the party who bore arms and participated in military operations. As a legal proposition, this charge is unobjectionable. I do not know that there is any evidence in the possession of this department which would have taken them out of its operation, unless it be some slight evidence that the Rev. John McMahon did not voluntarily connect himself with the expedition; but, coming into Canada for an innocent purpose, accompanied it under duress.

The affidavits on file in this department show that Robert B. Lynch served creditably as a private soldier in a Wisconsin regiment during the late rebellion: but, so far as appears, he [Page 194] was detailed upon clerical duty, in relation to musters, discharges, and similar operations of the staff department, and is not shown to have been under fire. Jeremiah Quinn, of Milwaukee, testifies that he has been State centre of the Fenian Brotherhood of Wisconsin since 1858; that he was well acquainted with Lynch, who, during most of the time, resided in Milwaukee, and was never a member of that organization.

Edmund D. Burke testifies that he has been the head centre of the Sweeny-Roberts branch of the Fenian organization for the State of Wisconsin since November, 1865, and was a member of it for a year and a half prior to his becoming head centre, and knows that Lynch never was a member of that organization.

Peter Lynch, a brother of the prisoner, testifies that the Fenian organization and projects have frequently been the subject of conversation between himself and the prisoner, and that the latter has always opposed and denounced it as a wild and impracticable scheme for the redemption of Ireland, and uniformly advised and counselled against it.

Edward M. Hunter, commissioner of the United States courts, fully corroborates the statement of Peter Lynch in respect to the opinion and declaration of Robert B. Lynch in regard to the Fenian organization and plans.

John Hay, of Buffalo, and Rodolphe Fitzpatrick, of New York, testify that they were, respectively, a colonel in the Fenian invasion of June, 1866, and the second in command to General O’Neill; that he was adjutant to General O’Neill. They both state that Robert B. Lynch was not connected with the expedition as an officer or soldier, and that he took no part in any engagement with her Majesty’s troops, but preserved a peaceable deportment throughout, and remained carefully aloof during the interchange of blows. Both also testify that his presence with the expedition was, to the best of their knowledge and belief, in no other capacity than as the correspondent of a newspaper for the purpose of reporting events.

In addition to this evidence there are the unsworn statements of many respectable citizens, testifying to the peaceable and orderly character of Lynch.

In regard to the Rev. Mr. McMahon we have less evidence. I think we may treat the notorious fact that the hierarchy and parochial clergy of the Roman Catholic Church have uniformly denounced Fenianism, as affording a presumption in his favor that he did not sympathize with the organization. On the 21st of July, 1866, after his conviction, he wrote to Mr. W. D. Frazee, of Winchester, Randolph County, Indiana, a letter, the original of which is on file in this department, in which he says: “Thanks be to God that I am innocent of being a Fenian; for no priest can be a Fenian.”He states, in that letter, that his. object in visiting Canada was to see a widowed sister-in-law in Montreal, with a view to assisting in case she should get into any trouble from a Fenian attack upon Montreal; and also to look after some real estate devised to him by the husband of such widow; that he left his home (Winchester, Indiana) on the 30th of May, arrived in Buffalo on the 31st, and crossed over to Fort Erie on the 1st of June, to take his passage to Montreal. “I was just going,” he says, “to the office to get a ticket, when there came a large number of Fenians, and took me by force. As there was not any train going out that day to any place, and the steamboat that brought me over had stopped, I had to stay there. The next day the fighting began, and no chance to get away; so I had to stay until I was taken.” The person to whom this letter was addressed is a magistrate, and he has annexed to it the depositions of four persons, certified to be of good character for truth and veracity, testifying that they had known Mr. McMahon intimately for several years; that they had never heard him speak favorably of the Fenians, nor heard him say anything on politics. They also state that Mr. McMahon told them before he left Winchester, (in May,) that he was going to see his sister-in-law, and look after his real estate in Montreal. They affirm their belief in the truth of the statements in his letter.

Two citizens of Anderson, Madison county, Indiana, where Mr. McMahon had formerly been settled as a priest, make affidavits of their having been repeatedly informed by him, at different times during the year previous, of his intention to visit Montreal.

I think the proof hereinbefore stated makes it clear, with regard to Lynch, that his only connection with the party invading Canada was, that he attended as a reporter, and was guiltless of further participation in its objects.

In respect to Mr. McMahon, it is equally clear that his attendance was only in the character of a priest. There is not direct evidence, as in the case of Lynch, that he had denounced the Fenian organization; but the negative evidence in support of the presumption from his clerical office, and the declared views of his church, I think may be regarded as sufficiently proving that he did not belong to it. His presence was, in the first instance, accidental; its continuance, if we believe him, was constrained. Of course, if this could be fully proven, it would have required his acquittal upon the trial, and should secure him a pardon. But if we suppose that the physical constraint was so slight that he might have evaded it, it would be very natural for a Roman Catholic priest to suppose that it was his imperative duty not to withhold from those exposed to sudden death the only means of obtaining the last sacrament, upon which, in his belief, the salvation of their souls might depend. For this error, it seems to me, the British government, having vindicated the law by his conviction, can well afford to make a charitable allowance. That a body of soldiers, nearly all Roman Catholics, finding a priest—the only one—in their power, should constrain him to stay with them, seems to me extremely probable.

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We cannot suppose that Lynch acted under any such notion of duty as is above attributed to Mr. McMahon. But we may well suppose him to have been ignorant that his accompanying the expedition as a reporter was a criminal act. In fact, as from the evidence we are authorized to conclude that he did not expect the invasion to result in success, it is extremely probable that he relied upon his erroneous idea of the law for his protection. If he supposed that his presence, and the reports he expected to make, would give aid to the invaders, his moral guilt would be the same, even if he had been correct in believing that he could escape criminal punishment. It is hardly possible to suppose him ignorant that, in the judgment of military men, the presence of reporters is prejudicial to success in the field, and he certainly could not suppose that a chronicle of disasters—which we have a right to believe he anticipated—could encourage recruiting in the United States. If so, his guilt is reduced to a technical one, which the British government may conceive to have been sufficiently punished. I have made no reference to the evidence given upon the trials of either of the prisoners, because that is in the possession of, and has been considered by, the British government; and I suppose it to be only such fresh evidence as has been transmitted to this department that it is desired to bring to their notice.

E. PESHINE SMITH, Examiner of Claims.

Hon. William H. Seward, Secretary of State.