positions, whose countenance or encouragement may have
involved, and may again involve, the excitable and less informed in an
open violation of law. At the same time there is a plain distinction as
to the penal consequences, between a moral and a legal aiding or
abetting; and holding throughout these examinations, as I trust I may be
enabled to do, an impartial as well as a firm hand, care shall be taken
not to confound an indiscretion or a moral perversion, or any mere
expression of opinion, however gross, with a wilful act constituting
legal guilt. I fully recognise the doctrine suggested in the defence, of
the largest liberty within law, and also the right of the people to make
or amend constitutions and laws, by all constitutional means or reserved
powers."

* * * * *

"But so far as the defendant is here proved to have done any act, there
is no evidence which connects him criminally with a preconcerted plan of
rescue; and I take pleasure in adding that the conduct of the defence by
the learned counsel, and his testimony and disavowals, have greatly
aided me in coming to that conclusion." * * *

"Of this preliminary point of the evidence I do not find an aiding or
abetting within the provisions of the statute. But, in connection with
what immediately followed in the passing of the defendant out at the
door, the exclamation supposed by one witness to have come from him, his
position and his hand upon the door, immediately followed by the rush of
the rioters who surrounded it, and the absence of all evidence of
attempt on the part of the defendant to prevent the rescue, it
presented, on the part of the evidence for the prosecution, a strong
case of probable cause, that made it the duty of the district attorney
to bring the party to an examination. But in the view I take of a
preliminary inquiry in this form, and especially where not only the
evidence that would come before a grand jury, but the defence is gone
into, testimony stronger than probable cause should appear, in order to
hold the party to a trial." * * *

"Then is that proof found in the acts of the defendant as he passed out
of the door, in themselves or in their connection with his preceding
declarations and conduct?"

The Commissioner then reviewed the evidence of Mr. Byrnes, and come to
the conclusion that taking it as it stands it does not satisfactorily
prove that the defendant uttered the words ascribed to him. * *