ber of the prisoners were collected together, at that time, in one of their yards, near the place where the breach was effected; and that, although such collection of prisoners was not unusual at other times (the gambling tables being commonly kept in that part of the yard) yet when connected with the circumstances of the breach, and the time of the day, which was after the horn, (the signal for the prisoners to retire to their respective prisons,) had ceased to sound; it became a natural and just ground of alarm to those who had charge of the depot.

It was also in evidence, that in the building, formerly the petty officers' prison, but now the guard barrack, which stands in the yard, to which the hole in the wall would serve as a communication, a part of the arms of the guard, who were off duty, were usually kept in the racks; and though there was no evidence that this was in any respect the motive which induced the prisoners to make the opening in the wall, or even that they were ever acquainted with the fact, it naturally became at least a further cause for suspicion and alarm, and an additional reason for precaution.

Upon these grounds captain Shortland appears to us to have been justified in giving the order, which about this time he seems to have given, to sound the alarm bell, the usual signal for collecting the officers of the depot, and putting the military on the alert. However reasonable and justifiable this was, as a measure of precaution, the effects produced thereby in the prisons, but which could not have been intended, were most unfortunate and deeply to be regretted. A considerable number of prisoners in the yards where no disturbance existed before, and who were either already within their respective prisons, or quietly retiring as usual towards them, immediately upon the sound of the bell, rushed back, from curiosity, as it appears, towards the gates, where, by that time, the crowd had assembled; and many who were at the time absent from their yards, were also, from the plan of the prison, compelled, in order to reach their own homes, to pass by the same spot. And thus, that which was merely a measure of precaution, in its operation increased the evil it was intended to prevent.

Almost at the same instant that the alarm bell rang (but whether before or subsequent, is upon the evidence doubt

ful, though captain Shortland states it positively as one of his further reasons for causing it to ring) some one or more of the prisoners broke the iron chain which was the only fastening of No. 1 gate, leading into the market square, by means of an iron bar; and a very considerable number of the prisoners immediately rushed towards that gate, and many of them began to press forward as fast as the opening would permit into the square.

There was no direct proof before us of previous concert or preparation on the part of the prisoners, and no evidence of their intention or disposition to effect their escape on this occasion, excepting that which arose by inference from the whole of the above detailed circumstances connected together.

The natural and almost irresistible inference to be drawn, however, from the conduct of the prisoners, by captain Shortland and the military, was, that an intention on the part of the prisoners to escape was on the point of being carried into execution, and it was at least certain that they were by force passing beyond the limits prescribed to them at a time when they ought to have been quietly going in for the night.

It was also in evidence that the outer gates of the market square were usually opened about this time to let the bread wagon pass and repass to the store, although at the period in question they were in fact closed.

Under these circumstances and with these impressions necessarily operating upon his mind, and the knowledge that if the prisoners once penetrated through the square, the power of escape was almost to a certainty afforded to them, if they should be so disposed; captain Shortland in the first instance proceeded down the square, towards the prisoners, having ordered a part of the different guards, to the number of about fifty only at first (though they were increased afterwards) to follow him. For some time, both he and Dr. Magrath endeavoured by quiet means and persuasion to induce the prisoners to retire to their own yards, explaining to them the fatal consequences which must ensue, if they refused, as the military would in that case be necessarily compelled to employ force. guard was by this time formed in the rear of captain Shortland, about two thirds of the way down the square: the latter is about 100 feet broad, and the guards extended

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nearly all across. Captain Shortland, finding that persua sion was in vain, and that although some were induced by it to make an effort to retire, others pressed on in considerable numbers, at last ordered about fifteen file of the guard, nearly in front of the gate which had been forced, to charge the prisoners back to their own yards.

The prisoners were in some places so near the military, that one of the soldiers states, he could not come fairly to the charge, and the military were unwilling to act as against an enemy. Some of the prisoners also were unwilling and reluctant to retire, and some pushing and struggling ensued between the parties, arising partly from intention, but mainly from the pressure of those behind, preventing those in front from getting back. After some little time however, this charge appears to have been so far effective, and that with little or no injury to the prisoners, as to have driven them for the most part quite down out of the square, with the exception of a small number who continued their resistance, about No. 1 gate.

A great crowd still remained collected after this, in the passage between the square and the prisoners' yards, and in. the part of these yards in the vicinity of the gates. This assemblage still refused to withdraw, and according to most of the English witnesses, and some of the American, was making a noise, hallooing, insulting, and provoking, and daring the military to fire; and according to the evidence of several of the soldiers, and some others, was pelting the military with large stones, by which some of them were actually struck. This circumstance is howeyer denied by many of the American witnesses; and some of the English, upon having the question put to them, stated that they saw no stones thrown previously to the firing, although their situation at the time was such, as to enable them to see most of the other proceedings in the

square.

Under these circumstances the firing commenced. With regard to any order having been given to fire, the evidence is very contradictory; several of the Americans swear very positively, that captain Shortland gave that order, but the manner in which, from the confusion of the moment, they describe this part of the transaction, is so different in its details, that it is very difficult to reconcile their testimony. Many of the soldiers and other English wit

nesses heard the word given by some one; but no one of them can swear it was by captain Shortland, or by any one in particular; and some, amongst whom is the officer commanding the guard, think if captain Shortland had given such an order, that they must have heard it, which they did not. In addition to this, captain Shortland denies the fact, and from the situation in which he appears to have been placed at the time, even according to the American witnesses, in front of the soldiers, it may appear somewhat improbable that he should then have given such an order. But however it may remain a matter of doubt whether the firing first began in the square by order, or was a spontaneous act of the soldiers themselves, it seems clear, that it was continued and renewed both there and elsewhere without orders, and that on the platforms, and in several places about the prison, it was certainly commenced without any authority.

The fact of an order having been given at first, provided the firing was under the existing circumstances justifiable, does not appear very material in any other point of view, than as showing a want of discipline and self-possession in the troops if they should have fired without orders.

With regard to the above most important consideration of" whether the firing was justifiable or not," we are of opinion, under all the circumstances of the case, from the apprehension which the soldiers might fairly entertain, owing to the number and conduct of the prisoners, that this firing, to a certain extent, was justifiable in a military point of view, in order to intimidate the prisoners, and compel them thereby to desist from all acts of violence, and to retire as they were ordered, from a situation, in which the responsibility of the agent and military could not permit them with safety to remain.

From the fact of the crowd being so close and the firing at first being attended with very little injury, it appears probable that a large proportion of the muskets were, as stated by one or two of the witnesses, levelled over the heads of the prisoners, a circumstance, in some respects, to be lamented, as it induced them to cry out "blank cartridges," and merely irritated and encouraged them to renew their insults to the soldiery, which produced a repetition of the firing, in a manner much more destructive.

The firing in the square having continued for some time by which several of the prisoners sustained injuries, the greater part of them appear to have been running back with the utmost confusion and precipitation to their respective prisons--and the cause for further firing seems at this period to have ceased. It appears accordingly, that captain Shortland was in the market square exerting himself and giving orders to that effect, and that lieutenant Fortye had succeeded in stopping the fire of his part of the guard.

Under these circumstances it is very difficult to find any justification for the further renewal and continuance of the firing which certainly took place both in the prison yards and elsewhere, though we have some evidence of subsequent provocation given to the military, and resistance to the turnkeys in shutting the prisons, and of stones being thrown out from within the prison doors.

The subsequent firing appears rather to have arisen from the state of individual irritation and exasperation on the part of the soldiers who followed the prisoners into their yards, and from the absence of nearly all the officers who might have restrained it, as well as from the great difficulty of putting an end to a firing when once commenced under such circumstances. Captain Shortland was from this time busily occupied with the turnkeys in the square, receiving and taking care of the wounded.. Ensign White remained with his guard at the breach, and lieutenants Avelyne and Fortye, the only other subalterns known to have been present, continued in the square with the main bodies of their respective guards.

The time of the day, which was the officers' dinner hour, will in some measure explain this, as it caused the absence of every officer from the prison whose presence was not indispensable there. And this circumstance which has been urged as an argument to prove the intention of the prisoners to take this opportunity to escape, tended to increase the confusion and to prevent those greater exertions being made, which might perhaps have obviated at least a portion of the mischief which ensued. At the time that the firing was going on in the square, a cross fire was also kept up from several of the platforms on the walls round the prison, where the sentries stand, by straggling parties of soldiers who ran up there for that purpose. As far as this fire was directed to disperse the men assem