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JUDGMENT OP I IS nONOK JUSTICE EITOHIB, ^s IN TilE UAirlvOl' IIIR ■•,tf lAPTORS OF THE AMERICAN STEAMER C H E 8 A I :> E A K E . gr. 8T. JOlhN, N. b PEIMTED 1)Y CUO, AV. DAY, 4 MAlUiEX 3XUEET, 1864. I y.- \.\ ■• >.)«'■ . iA!;n'../i/j'U.>.>m;>:^H'i' ENT , T ur HXS HONOR JU8TIOK KITOHIli:, ^; In Uie oase of the captors of the Amerioan Steamer Ohetiiapeake. .. .^ ^ . , <>iixi ' M-J.i.^'^i-r ■ ■'; -V """" '^ . -^ .f .' /,ii ^ •..:-r /.'-.via// Mi DAVID OOLtlNS, r .J%.■..;0.4.^.- i'ui-;;. . '^'^ --J^f^'^-' V^,r^"^ ^;*'^'l' JAMBS tfoKlNNEYy f rnsoners oonnned in toe Oommon Gaol of :.ij;.:Yr and ^ ^ \; vl theOity andOountyofSiiittJib, > LINUS 8EELT, . ,ra nif ^ii". r» .,, '. .:,.Y ,.. Thin w»B bh Application made to me on be half of the above named prisoners, under the Aot of Awsmbly 10 Vic. cap. 42, entitled •• An Act fi»r better securing the libotj of the •ubi^ l" and sufficient cAuse baving been •hmm to me* I did, Iht order in >fnitii^, re> 2uln Ittd duvot the Keeper of the Jail of the itjr and County of Saint lebn to return to mt ^fvtetlMr or no the saidpartiea were detained Magistrate for the City of Saint Jo]|m, i^ip dated 25th Eebruory, 1864, |ui4 vU directed to any Constable or Peace Officer of the C\\yjjb^/i County of Saint John, and to th? Keeper ofi:xe JaU, wheti)by the Mid ConftabU ib.4m(«p^4 < Conrey said parties in the words of th^^ rant '♦ch^rgeii by me," H. T. G, j^«q. P.: ftc, and one of H. "HI. J. P. for $cc~||ip{inar det* a Warrant under the haiiid wauseajliv^. ordet tha A«riff of the Oity and etmapf of St loha, the keeper of said Jail« returned to tae that the said |>artiea w6«b coniaed in tli« mAA Jall.vndcr a warrant fnnn Hunn>b»ey' f . Gil' beit^ Police Magistrate and Justice of tihe PeMt I for the City andlkmnty of <8aint' Jo!^ni fronjtho foUowing latest MiKinney frOin th^ 36thi)dtty >of December last past ; 66Wn« frftte In mImb^ together with Om iday and cause of Bxofllency the Honoralrfe, Aithur tL.-^ thMrhiitef boM taken anddeudntod t to whkhfOordon, C. M. G., Iii'eiiti«ia^i 'OoTern<;fr jU|d Commander in Chief of |(he IPiroidnce of, ) bearing date the 24th day bf D^pember,'^^^.^^.., l8#3, and made and issued Inpursuimce ofit)^ Aet of the Imperial Parliament^, entitled. *',A^ Act fiyrgiTing effect to a treaty |>etiiree4;^9^'' Mojesty and ,the U. S. A. for the.apprdM^iudm ' of certSkin, offenders,*' and in piiursvMinQe ,<^.ail^ fai. 'accordance with th^ said ^'rcf^ an^ Aecemb«r ; and Sedyrftom the 1st RequisitionluiTu^ been mfi^ tb His T^cmeti- dayioflanttaryJast past, exeept wlien ord«red^ on liehavof ,U>e si^id tJ. S. A,> i>y 4« "(j^ Ibr wandnation by the said MagiittMl^ ^fM BpwaM, CoteUlof the saim !/.!(. i(|^%tt^pi|^ II ordook. ov thereabouts off the lM»rliJMr ctfMf'Biufit.Jolinrl^Vince of N. Bn sttd£tngih«t the iMlh of Febraiiy, tiMn ia««Mt. w^tetyHfol^ P- B^ine, TS^. C. Itmolts. ]?NriKlnn< -' .-'-.h v^/d selves accordingly, and to aid in apprehendii^ the said pttroea (naming them as before) so accused, and committing them (naming them) to JaU for the purpose of being delivered up to JustiQe aecording to the provisions of the TTrdaty; and hereof they will fiql a^th^ " A^d 4i| WMnnt U the said H. T. ;fh^ Mpcp^ded to recite that on there eeipl (ii sneh WtlMMt* and acting under «nd hy fliMe fbanoi; and in pursuance iof the si^d Aqt of Parliament, he dif examine Isaac Wil« Mtt^r.o^th touching the truth of the' said ihswfc|st|f6rOi in the spad Wanaut; «nd;upon tk^e^M^of^e aaidWlQets, in pursuance oTQI^ i*id Act.of FaHilip^t, he cbd on tbe 26tkjAn of Pecciubflr iMt Imuc a Wanunt un itt H^'jfkand and r«m lor the i^prehcnsion ot lows the copy of the Warrant) whieh Wi»rait ^e said vesiel being 4>en on a voyage Arom the -jk 1..__.^ ... ... - ., • -" portofN'tewYorkintheU. S. A.tothoportof Portland in the said U. S. A., and having then and there piratically, felonioutily, wilftilly and ' maliciously put the said Isaac Wjllleti aii|d others (he crew of the said vessel in fear and danger of their lives on the tiigh scan aforesaid, and having there and then malioiouS' ly. wilfully, feloniously and piratically taken possession of the said vessel and carao tneiwof ; and with having then and thsMi nloniotMly, wilfully, maliciously and piratically stoljnp i^fid taken the Mid vessel and cargo Uj^n tile hli^ seas aforeslU ; and ako.for having at tlie^aBa and place aforesaid feloniously, wuftllly,'iM>«' liciously akd piraticallv upon the high smm aforesaid kyied and murderea one Orln SohafllHr in and on Qoard said vessel on the said ^^^ffH^i and also for having ai the iime and place an>i«« id with force and arms feloniously, wUftHlyi ^Alioiously and piratically assaultea k woutU ed one Chas. Johnston ; and also for teriag at the time and place afionaaid JEtlomaiilly« i«il> ftiUy, maliciously, and j^raticallylMMuItedaaA wounded one JM|et lohnf4ou« and to be AmM > with aocordiuff to UWrllie isid comBlalM h«*« ing be^ made mA lalM^ ind thSa WMNfl having been is«ued diction and having been arrested aod'bn tK£i>re me under and by virtue of the Add.'' nmt, BaA I having proceeded to the lUi t^on of the charge of Piracy charged m^iiitmmt. upon the -^- * vrhich wammt charges aforesaid, a aimjMl which warrant is then set out. It is daileiJ ^ T)ac. U63. directed to any Constable •r fmnii Oflicer of the City and County of $mb.% Jopq. and nriDiceeds: ••Apprehend; John. C Btuilittid (tine parties before nai^ei^) ]ofa»9 tiMim' bf^t« me^or some other Justt^e^ at 'ftho Poljife pIB^ ^1 tlie (Sty of Saint Johsi, to an swtar ,i Seely tp the Common Jail of the OtymA t Qounty of Samt John and deUtei each orllMiii ^{|]|e,|MMmeptlieraof upott the ehaiBa of JNiaofi' flhi^^ iKving antWlt&My of 'Dot:, ^i* .$k,A4|#^ on the high seas, aiiout 24^mik»II. M. ^ )#mMMj9f Ca|w C«3 in the U. S. Ah Hith iMrof 3 .»,Mi ■ T^^A' .-.i-it jtti.H ■».>!•: Ml »>«•♦> ' \ -H^JI^ (»-. Vj a. felonioualylat the €Uv «f St. 7onii, upoii^wli{ehtli«'W«r» TBE CHESAPEAKE TRIAL. 4nJI Amfui malicloiialy, wilfttUy, . ,._ Mid Itiratically made an assault upon the aaid nut of Hm Excellency wa« iaaued» and oif tke laaao WUleta and others the marinenthen on original depositions of IsaaoWiUata and Oaaif) boMd and in chatge and cointaahd of the steam- Henderson transmitted by the said Consul with l)oat or vessel named the Chesapeake, tfate said one of the Aid letters, duly certified agreefably vessel being a vessel befonging'to thcU. 8. A. to the Act of Assembly, under the hand of thf and registered lA the V^ 8« A. according to the Hon. 8.1*. Tillay, Provincial Seoccftary, aitd tbf laws of such 8tate8,and belondiig to one Henry charge at length on which the cuunination be.* BijCromweU a citizen of the U. S.A^ond being of the value of $60,000 of lawAil money of K. B., and havine on board a cargo of the \'alue of $80,000 of like lawftd money, and the said vessel being then on a voyage from the ))ort of New Yon in the U. 8. A. to the port of Portland in the naid U. S. A., and having then and there pirfitically, feloniously, wilfully On this rettim being made fo tti« at the •Moiiitad tor the heanng of this matter, on aj^ pUeadim madeob bduSroftiie nid DB t|i« afldavit of David Collins, I did, in pur- sttno4 of the pow^ and authority in m« fkti «d bir the Act of Assembly, I9th A^c, Chap. 41 reqwse and direct a return to be mfide to ihe of all d^e ptocotidtngs, e^taminationa, or^irs,an(~^ deMidltlons taken MTore H. T. Oitbe ^ 7>«14 and ii 'P; ftCn under and by virtue df m War' rant purporttng to be isaued by His E^celieacy, the Ueutenant Governor, dated the 2fdi X)ec. MaMd 186^,' the same beiai^deemed by me neoeasaiy, ^epas and ptopKt for the porttoaes of ^Uatiee to en- able me to examine ia^ and dedde upon the legalltjr of the impri4oiiUei|i( < idjjMrtiea; 4^ 1 Uf fore lfrj,Oilbert proceeded* The Consol's letters are as follows c— > ta CeprO " ■• VaiTSD StaTXS ComULATI^^' I ■ I St. John, N. K.. Dec 22, IMtL { Hon. B. L. TiLbBT, Froviaeial Secrataiy. Bia,— I have the houor to addreas throngh jNM a eammnnieatioii totha Meateoaat GevDraor «f and maliciously pxit the said Isaac Willets the ProviMa for the parpoaa of mqaestf off tmd others the crew of the said vessel in fear Hia KxeaUeaoy will be plsaaad to oaa tliaaii rt e rt ' and danger of their lives on the high seas aforc^ fr V^^ '•» ••♦■> ^ .*".• '^<* "f ParUaoMiat, fif. Mdd. and of having then and there maliciously, fi^£ !*«**• *¥*J'*'"^JL'i ^ ?" *! ^■''»'»'^ >HmUly. felonio Jy and piyti«3ly Uk«a p^ J^^^^d^iSJe^rS^toiSK.'" "^ ** sesalon of thesaul vessd and the cargo th«eo« ^^^SySSTtSZ!^^ and having then and there feloniously stolen ^lal, aaan eiker ellhe OwvermaantorthH UnKd and taken the vessel and cargo upon the high mt/tta, 1 wm aathariaad by the ■aeeaWva Ba| seal aforeMid, there to remidn until delivered «s«it of the* €ktv«maMne to made a BeqalB ^ puMitant to the ttequisidon aa aforeaaidi and apsn hlai aa the OOoai ad rntni ata rfaig the Oovena you the saidKeeper shall reeeiveasad (Mtfely kecpfBMil^ of tha.Prov^ea ia order that ovtaia »r4?. %Miia.j H. C 9*Mi». ^ |tobsii:c(ssrH.irn[n;^ttl |l|i|rieKlBa«, ^ UttktymtHM ihat an ' iHlfcadPpil'PMipa um ^* iilMr Mii6l»atsa' wWhliW flilfiKliMa of ^ and t dit«Qted that no^eiiiqSsvAor^ : be forihwifh served on .lb. GiiKrt. who» upn xPmS'^ nofieethtlreof, retailed ^j^fatt^f^lipfOfeed,! ingl_unlrdoetiments ^f^t^ him, Cut iyo at^x the WaJtaait froni HlsBw^llfn^tlS^ ant doveiiArii the «ompI#^ ti laaac. Mr. GiQMM'a: ftast Wan«livtO PW^if^ pri^h^&i^lridence mm jmm^,9iSXI\ th«LM¥&e>kosea^ ^^T'^ and w prooee^mga on the part of the priaon^ ^^ era, iaoluding oopiea of the original letteraandr Requisition ^ J.Q. Howard* Esq. U. 8. Conaul ^WB^r' aM la i»|Milimai{ tba aieita ^asiaaa^grePtaaearfsr - afkaiiiaf ihaaa,~ 'je l*iM«r, r i>9 viiw ia l B aiTa t a r y, .:•■ - ,- -^-n >fi^,to tr a n sm it) t h e da po s it iqua al) « idMlaaeldenfla of the cilaiaaMj, i.fu i other witneMOH (naminK tl cir.) takrit in the DKMI^cv . Mid hearing of I)nvid CqIUiis of th« ;j^ of St. John, labprer, Jamcit McKinncy and j»u« $Wly of wme placT, laborers, w^oatand larged before n»o, Uuniphwy T. Oilb«it. iqflre, PoMcc MagUtrate. lor the City oT 8t. Johi>, and one of Her MaMy'* Juatieea of iho _iPeace for the City apd Uovnty of Saint John, Tke depoaMona tranamittcd with one of |^ati9g Wider a Warrant under the. hand and theii letteni Mofieaacd to haire been awpvn b^ MAiiSf His Excellency the Honorable Art)iur fore •• H. T. Gilbert, PoUee Magial»ate •ftM HamiJtW Gordon, C lit. G^ li^ut. GoTero^r City of Saint John," on the 2tnd Dee., 1M9, ud^^mmander hi Chief of the Province of the Jurtt does not say where. The dcpoMtion* Nei||t'j]n^isM-iok>beaiing date the twenty'fbutrh are handed. »'P«wince of New Brunswick, City ^j of t)eeei»Vcr, A. D., 1863, and inade ana And CMlntgr of St. John, to wit," and com- i^^^ in pursuance of the Act of t^ Xn^P^rial oience " Isaac WilkUo* the CitjroT New York p^ji^nent, intitlcd "An Act (ot gjLvinsef- in the Stwte of New Y«rk, Umted States ol f^to a treaty between Her Majesty and the Ancrka* tfiH^aia ai the steamer Chesapeake tTnUed States p/ America for the apprehension bdotfgiiyrtotlM United States of Ana«riea,Md ^cerUm offenders," such Warrant directedi.tO DaHMrnndenenofthcCityofPortlattdinlMl^ f^ erery the Ju»tices of the Peace «b4 StattofMaine, one ofthe United States, 9pcondQ)B(.^,, ©f Justice in the I'rovinca of Ke* Mate of thes^ Btearocr." and then detail, 6^ j^sWick, for that they, the naid David wl- tar'aa Within t^^rovn knowledge or wlHit^yji^, lathes McKinncy and Linus Seel^, to* ue^«i^ boa«d» fthe ciKjumataiacBsQf tlMJ.«Wr g^her with John V- Braine, H. C. Brows, tui*^ certai^pas^ngwa (mte«4n all,)qi5i,^rt Clifford, Ge9WL« Ro^in^on* OOT)f»lth whow,«he mrnm^tH Biame, CoIUm^ Bobinsota <;<«, Robert Cox and % A. Parr, not b>oia|ht aiul'.tPsinr a»» gfaMS, the names eClkeotbsta ^p ^^ora m ft* exa;ipination, did pn.t^ie.7^ beiat«"^iw# an^^h^ siawTti«t.t|tky aw tifojilif ml&Al: C, Bii&ie. 'W0,'^ ■^^ilhn Vt . ..^a^er ^, ^ „ . States ^tteJiflterr o; fm ^ril<^;^eIM^I8aa<; j/Uiuts^aW ajiil^ Kot>«rlr4ii>aM)oU*'A. KKn< othiia tlw.^«m«kaf 4be «ai4,s«i I said sjt^ vessel and thf ap; i thi?reof qf t^j4<>ei<^ forcible PmKju! o Hii siUtf'ftliigirttgauiat their wiU i that af tl» ^thar oftoera and cnw of f< .^ ■aid 4a^L; JNl»*««^ detaiUng the fccta rtw > a'4 « »i^ ^|i**.'>*P •»>»■> jrfKwmr or Mvr. i«wo)l .tJ.T.'ji; n.,.«'i'Vi/i.'i * : f! 9fiJ TIIE ClIEBAFBAKE TRIAL. er« MnHtin(t the Mid tmiae Willctn in tT^e n*>> figfttlon of thpflftid ateam veBBfl^ piratically arid ferociously did k\ta\, tako and run away withi they the Huid Dnvtd CoUinn, Jamet McKlnnoy nltcf in thila Uibwn to inreftlgata all cas«a of oUejjted unUw> All arrent, and to relieve therafrMn. if ah«im to bt oontiwjr to Uw. 'tk» right to uttnt auch ana Linun Ruely being pasMntgcrn on board the Raid steam vesacl, in and on board the same on the high seas aforesaid, against the laws of the TJnitod States of America nnd the Statutes of the United Kingdom of Great Britain and Ireland." The prisonem bv t^ieir Couusil claim that their detention Ih illegal, and a great variety of obiections were urged at tbngth to the proceed- ing in this case. They arc all I think covered by the following: First, that there was no Ic^&l charge against the prinoncrH in the United States or in this Province of an offence men tioncd in the Statute committed within the Jimsdiction of the United States, nor any proper Rcquiiiition by the suthority of the United States for the rendition of the pri actnerfl, nnd Uitrefore the Govornor had uo au th6tltv und^r the Treaty and Statute to Ihsuc bis Warrant. Secondly- Th*t if he had, Mr. Gilbert had not, either an Police Magistrate fpr the City of two parties respectively that persous coramltt Sftint John, or as a Justice of the Peace for the City and County of Saint John, any authority to examine touching the truth of the charge of Piracy alleged in the Warrant, or to commit th^erRohs u^cus^d thereof. Thirdly-ThtttifMr. GUbert had jurisdic- tion, the evidence before him showed that the ofTencc was not Piracy, and the prisoners were not guilty of that crime, and consequently there was no evidence of the truth of the charge but to the contrary. . j" Fourthly —That if he was not wrong in this h* wrongfully took a fresh complaint, andwrong- fVilly examined on charges contained in that c<»r;>»>**"^t, And_ not on Ihfc charge in the Gov- ernor's Warriint, and that the Warrant he issued and under which the prisoners are now detain- hoa not him, aad oannot be questioned, llavlag then all the proeeediiiR* befcnre me I have to ascertain aud determint whether or not such proceedinm are JuHtifliMi by and in conformity with the Treaty and Avt or l^arllament. If they are, thisapplioatkm must be dianiiMsed. If they are not. the prisoners must be discharged. The Treaty under which the doliverv up to the United States Government of tht prisoners is sought is a Treaty ratifted on the latb of October, 1842, -^< to settle and define the Boundaries between the poaees* sions cuf Her Britannic Mi^ewtv in Uogih America and the Territories of iiw Unil* can Slave Trade, and for giving up GrlaiiiiiJs. fugitive» from Justice, in certaui cases," 'IT»« recital of it having reference tu that uurtioii which bears on tlic present catie is ; - " Whori'- as it is found expedient for tU) be^tw adwtnii* tration of Justice and the prevention of crim^' within the Territories and Jurisdiction of tbt ing the crimes, as hereinafter eaumeratud, and beuig fugitives from Justiecj should, under oor- tain circumstances, be reciprocally duliverfld up." And Article X contams the stipuUtion agreed on, and is aa follows:— , It is agrted that Her^rittaiiio Majesty and Ui« TTuittid (states shall, upon mutual vequisltfuiis by tliom nr their mluistera. officers, in- authorities, respectively made, deliver up to JusflfeaU per- sons who, belnir charged wfth t>iecrim« of murder, or annult with Intent to conmil murder, ei piraoy, or amoo, or robixsry, or t'orfcery, or thv utterauca.of tWrRed ipav«r, cooiwittwd within the Jurisdiction of either, abatl seek au asyh^n oi shall be found within the.territorius of the oUmr,>^ (truvided tliat this slmll be only djiie upon auch evidence of crimlnuHty as, tceunlinff to the lawn of the place where the fugitive or tlie person Sn charged shall be fitund, would Justify Ii1« appre* cd is bad on its face and not sufficient in law tok^ngj"^ ^nd committment for trial, if the orine justify their detention. j^r offence had theie been ooeunitted; tiid tiH»i in^ai^-' The Queen has' a right to know why any of Her subjects, or persons in Her dominions, who are alleged to be wrongfully imprisoned are bo restrained of their liberty. The Writ of Ilabetu, Corput at Common Law and by Statb'te, and the Statute of the Geiieral Assembly under which I am now acting, are the consti'tutloni m(^ans in this Province by which all allege improper im^risonmeiits' are enquired into, am Her Majesty's Supteme Cduit And the Judges of that Court are bound on proper cause nespective Judges aud other MagiotiatesalUietwo Uovmumitots sliall liave |«ewer, JMiinttifftivu V^ authorit^^ upon c-omitlaijit moiW vudi^r uatli, tu iaaM<( a "" arrant fur the Hpyreheusion of the fugiti^ti 9\\ ^rstin so qhacged. thKt him^y bo brought misH such Judges or other Maglhu-ateB, rfspucttvuly. M the end that the evidend^ of oriniinnlity may M beard and coDsidered { «ud if, ou well hearing, «bi* evideaeiibe deemed sufficient tu suatatu ths ehwge. it ^MJUkfoi the duly of the enumining .Ju4ge •) Magistrate to ceitify %be same to the popsr execu- tive authority, that a warrant may Imu* for tb« &•' ■ I H» I H I I I M I II«| | | l | l l Mlion. Wo mutt look closely to the Act of Parliament, for it is from that, and that alone, tho authority to act prococda, and the vL-rv first worda of the enacting part of the statute show that the bakis of this right ia on on event. " In cato Requisition shall at any time be made by the authority of the United states in pursuance of and aocording to the suid Treaty for the delivery of any peraoncharged with (certain crimes including Piracy) commit- ted within the jurisdiction ol the United States" (kc. t bus we tee the Requisition is not to he a simple bald request for ttie delivery up of the person named, but it is a Requisition which must be by the authorit) olthe U.8,— it mutt be in puraiiance of and in accordance with the Treaty— it must be for the delivery of a par- son charged with one of the oflfencea mention- ed in the Treaty, and the offence with which he is charged mutt have been committed with- in the jurikdiotion of the United States. If • case pertevt in all these ingredients is pre- srntcd the statute Bays it shall be lawful for the Administraior of the (Government of any 'olony or Possession by a Warrant under hip hand and seal, to signify that such requisition has been made. Deficient in any one of these statutory requirements the Governor is pow- er lest to act. Let ut therfTore examine the docnmentt upon which 1' is Excellency issued his War- rant in this Ci' 1-. They all btsar date on tha tan^" day» and in the absence of any evidence to t.:c contrary, I aiay ataama were laid ba- I the •ppre- to commit hert to fe- tnnhrequl- it enMted, the depoci- arrant wan of tho p«r- Arrant, and producing nal dvpotW r the crini- d." e gives the- [tent of aiijr B and other within their a •tatutarj' riotlv inac- and rigid- Ing thiit in ktion of the doselj to n that, and jcecda, and {part of the right ii on hall at anv the United f to the 8uid ■uncharged ;y) commit- itedStatea'.' not to he » rjr up of the Ition which fc»,— it mual ice with the ry of a pet- 's mention- with which aitted wlth- Hates. If» inta U prc- B lawful for iient of any t under hi? \ requisition one oflhest nor ia pow- docaments >d his War- date on the ay cTidcnce rere laidbf* THE CUE^APRAKK TRIAL. , T fore Hit £xo«lleney at the same time, hut thtlof their guilt or innocence msv be heard and letter signed J. Q. Howard, U. 8. Cnnaul, in|oniir(i(l(>ri>K him to »mV. for the apprehension of the fenders (not naming them or their «tim«, uriindividual i^nrties ho names, or to ask fbr the pldce or jurisdiction within which com- 1 their apprchenRion as charged with the crime a* to the ex'ont of his authority, nnd upon this, without production of the authority, hs proceeds to reqtte^r that His Excellency will by Warrsnt aiKni'y nn before stnted. No au- mltted) may be apprehended and delivered up to Justice" (not stating to whom). Itthenpro- oeeda to desire the Secretary to make known tu His Eicellency that, as an officer of the committed within tho jurisdioiion of the Uniteii States, but simply of parties accused of the crime of piracy, for the purpose, not of being delivered up under th« Treaty, bat for United Htatos Uovurnment. the writer is auithepurpi>ii« of hitving thrm brought to trial, thorixed by the Executive Department of that! HMdHis Excellency iASU"d auch a Warrant Government to make a Kequisiticn upon him las {< here n-Kcdfor, 1 have no hesitation in ks the otlicff Administering the Government jsny ing, for ttte reansns that will hereafter be of this I'rovim'e, in order thut certain pfr^ionrj given in confrlng another branch of this (not naming them) believed (not charged) to case, it would have been bad. Is the matter be guilty of :hc crime of Piracy (not rtuting then helped by the second letter? By this within what jurikdlotlon committed, and not Utter the Consul transmits affidavits of (he stating whether piracy aj^ainsl the luw of na-|C tain and M-conti Mate, sworn at St. John tions or pTacy against the municiial laws of any particular oountr)) may be brought be- fore the proper officers of Juutice. so tluit the before H T. Gilbert, Police Magistrate, on no charge or complaint, 'o be pn-sentcd to His Excellency in onuc *' he requires evidence of evidence of their guilt or innocence may bt the criminality of the peroons charged with heard and considered ; and then he requests the crime of Pirncy before issuing the warrant that, in accordance with the provisions uf thejfor having them brought to trial." A sincere rtaid Act of pMrlimnent, His Excellency will by | hope is then expressed that no obstacles will WHnnut Bi»jf.ify that a Kcquisition has beenlbe thrown in the way of bringing those charged made for the apprehension of John C. Braincluirh so grave an offence to justice. If there and uthci^ including the priHonors, and re- are deficiencies in the flr*>t, it can hardly be quire that all Justices of the Peace and other urged that thev are supplied by this letter or Ma<;islrute9 within the jurisdirtionof this i'ro-'by the depositions accompanying it. Ul» Ex* ithall aid in apprehending the above cellency being one of the ('ommis^loners named vince named persons accused (not charged) of the orime of piracy, for the purpose not of having them delivered up, but fir the purpose of hav- ing them brought to trial. I'nder the statute wo have seen the Requisition must l>e made " by the authority of t. e United brates," that is of the GovcrnmeDt of the United States. Had Mr. Howard been a public Miniister ol thv United States, and so the representative of that Government, a Ucquisition by him would doubtlcbs have betn good ; but I am not aware that us Consul he has uny such authori ty unless spuciuUy delcgited. Perhaps the fair construction of that letter would be that Mr. liownrd intended to convey to the Gov- ernor that he was so!)pecially autnorizod, but the authority he claims is simply •• in order that certain persons be.ieved to be guilty of my opinion it cannot make the requi the crime of piracy may be brought ^fore tLo good if not good without it. preper officers of Justice, BO that the evidence] It appears to have been sworn before iir in the Hoyal Commi.irlon for taking infomra* tion and apprehendirg and committing for trial persons charg«:d with oifinces on the high seas, and if brought to trial, one of tie Judges to try theni, this* letter instead of being a Hcquiwition under tbcs'otute.or inaid ofaRe- quifcition, if 1 may u»c the fxijrcsslon, mure re!>emble8 an upplication to Hi- Kxcellennyin thii: capacity than to him unc r the Gth ^ d 7th Vic, u* an officer adrniu stering the '■ j - ernment, more particu'.nrly a* the las' ; •» i- grafh says: " Vrehud believed until tl i- ! o hour that a Requisition before the Exeiiu ive wouH not hav«i been required in the fir • m. stonce," which would rather corrol'orate ■ ' e view that pioceedings were desired, inde 7i I- ent of a requisition. As to the depositic* , ») THE CHESAPEAKE TRIAL. Qilhert as Folic9 Mat^istrate, and was, I think, on his part.HrhulIy extra judicial. No cem- Elaint or information »ppt>)ir(i to have been lid before him to justify hit* taking thi* depo- aition, and if the citarge of Piracy, which ihe itatemonis in it unanswered would justify, had been made at that time before him, he had no jurifidiction to entertain it; still less had he juritidiotion if the offence was an alleged crime committed within the jutisdiction of the ' TJoiti'd States, and therefore amounted tu no legal charce, and to no legal evidence of the crime, of Piracy ; but is it not absolutely no- ceseary that the parties should be chaiged with the commission within the jurisdioiion of the United Mates of one of the crimes men- tioned, that is lega ly charged judicially, or by public prxess, or in some manner warranted by the laws of th4;istraten authorizing them to institute proceedings to ar- rest and commit fhe fugitive, are those only permitted to be given in, evidence ; in other words, copies of the depositions upon which the Government acted in the motter are ad- missable as evidence of criniiimlity. The or- iginal of these are those upon which our Gov- ernment make the llequisition, and ot course the good faith of the nation is pledged that they are taken before competent officers, and that the facts stated are true." And (Jhief Justice Taney concurring, as he said he did, in all that Nelson, Justice, then said, contented him- self with expressing his entire ass'-nt to the opinion J^elswn bf^'l tben just delivered ; and Daniel, Justice, concurred in all that Nelson Ju8tio« said. And that this principle has been acted on will be seen by reference to Bisset's case, 6 Ad., and El., in England, where we find a warrant was first issued in France, and to Kane's case in the Unittd States, just referred to, where a warrant was issued in Ireland, in addition to the special authority and affidavit of the Consul. In Kane's case, reported in 14 Howard, Mt. Barclay the British Consul was specially employed, the report says by direct authority of the British Minister, accredited to the Government of the United states, and in pursuance of this authority Mr. Barclay made the necessary affidavit ; and no case has been cited to me, nor am I aware r by Treaty, to act, must enec of th« 18 well as thr rity." And ?r t)pinion of fy the com- Lition it must ?d were com- iction of the am a charge 9 we tind it sharged was .-i^ THE CHE8APfiA!K» TRIAL. conuBitted witbm the jurisdiction of the Umtedlother of the couatrita and m nade himMlf Stetea of Amenoa? The crime stated is Pi-|»ble to its courta and had bMO there legatty racy. In its primary and general 8ignittoation|»''»'R«i with the offence had fled or bean aubw- thia indicates an offence against the law of,?"«»*'y *T^ ^^ Sl^^SJIr^hl -jSlI.' .. J ^ • LI 1 ^1. ir J that in such a caae the country wtaera be waannt nations, iusfaciable wherever the offender mayjf„u„j „; ,,t claim juriadiction over the crime aa'l be found. In the codes of different coimtnesitiie perwn so chatKod. But I have great diffloalty It has been arbitrarily adopted as a term appli.|„nd am as yet unable to arrive at fihe coiiolation cable to offences against tlic Municipal Laws of that, when the pirate haa never after coaimittia(^ Buch countries, or as expressed by the Commis sionen in England in their report on the criminal law: " by Statutes passed at various times and stiU in force many artificial offences have been created which are to be deemed to amount to piracy." All such offencca would be cog nizable only by tribunals having juris' diction either territorially or over the person of the offender. K it was intended in this case to be used in its limited or artificial sense, should not the requisition have shown it, to enable the Governor so to state it in his Warrant; otherwise how could the Justices or Officers, — ithout knowing Avhether it was such an offent: a i Avould be cognizable in our Courts possibly be able to enquire into the suf- ficiency of the evidence according to the laws of this Province ? H it was intended to use the term, as I think it must be taken to have been, in its general sense, then the question has been raiaed whether inasmuch as it was not alleged that any of these parties had been in the United States since the acts on the high seas complain- ed of were committed, but the contrary was admitted on both sides, how can the offence be considered as committed within the juris- diction of the United States ? The object of the Treaty u to be found in one of its recitals, which is: " Whcious it is found expedient for the better administration of justice and the prevention of crime within the territories and lurisdiction of the two parties respectively, that persons committing the crimes liereinafter enunierutcd, and being fugitives from justice, should, under certain cirumnstances, be recip- rocally delivered up." It is wi.ll kiHiwn tliat the principles of the Com- mon Law pervado the jiirisju iidence of both Great Britain am! the United Stiiles, and hy the Coni- mtm Law crimes are unquestionably conoidered local, ('(iffni/nhle and pujiishable exclusively in the country wliure they are eomniittr.d; and it was doubtlesa to prevent the failure of Justice that wonld ueresflurily result fioui oll'enders in one country seeking refuge in the other and there being amenable to no puniahniunt, that thia Treaty was entered into; and it is not difficult to underatand how the crime of Piracy, in its general 5>enso, niif^ht coma within the operation of the Treaty when a pirate having goue into ouo or the offeood entered the country of one of the con traoting parties but ia found in the territory of tb« other, the Government of the former can asauai* jurisdiction over the offienoe and person, and re- quire hiu to be given up, and so denude the lattei country of ita clear jurisdictiuh in the ma<:ter. I cannot, as at present advised, tliink it was in- tended by this Treaty to ravm such a eonfliet of jnrisdictiuD aud authority, but that the word piiaey was intended to apply to piracy in its munieipal acceptation, or if to piracy against the law of na- tions then to the exceptional case I have abovt supposed ; but assuming the oITeuce as alleged to be one within the Treaty, and the Requisi^on to be sufficient, I proceed to consider the next ob- jection. Had Mr. Gilbert, either as Police Magistrate ot a Justice of the Peace; authority to examine tonob- inp the truth of the charge ? The terms of the Statute are that the Warrant of the Govemoi shall '' require all Justices of th» Peace and nthe Magist- atea aad officers of Justic* witliin their several jurisdictions to g<>vern them- selves accordingly and to aid in apprehending^Ac- —and thereupon it shall be lawful tor any Justiat of the Peace or other persona having power to comnait for trial persons accused of crimes against the laws e:° that part of Her Majesty's Dominion* ia which such suppoaed offenders shall bo found to examine upon oath, &c," The worda of th* Statute dia'.>r from the Treaty. The words of the Tiesty are " J iidges and other Magistrates." I Kb bound to think this alteration advisedly made, atki I lind ii difficult to conceive any other reason, thab tu preserve consistency in the admi<.istration of Justice. In the Treaty nothing is said as to tht iuiisdiction of the Justices and other Magistrates. In the Statute the Governor can only require Justices of Ihe Peace ana other Magistratea aad offiners of Justice to act within their several jurif- ditaions ; beyond their jurisdictiou then they can- not act. But the Statute says, it shall be lawful for any Juxtice of the Peace or other pei-son hav- ing power to commit for trial persons accused of crime, (&c.,— that Is, I am inclined to think, whea accused of crimes in the United States over which the officers reapeotively have jurisdiotion to com- mit if committed in this Province. Then in such cases they should examine on oath, and if tk» evidence would justify their committal here, iaau* their Warrant, &o.; and an iusertiohof the worda " or other persons having power to commiB for trial" would seem unnecessary if Justices of the Peace and uthfr Magistrate* could act in all casae. As at present advised I am disposed to read tbv 'mmmfimr' •»»»«^!»"»™>iw~BfR»f»»*| 10 THE CHESAPEAKE TRIAL. rerma " in their MTeral juriidictiona" in their bnwd ei^ification. 1 think it more oonsiBtent vith the scope of the Statute and the dutiea to be performed that they ohonld be considered as apply- in(t to their judicial as well na thoir territorial jvriKKction, it being, I think, onreanonable to aup- pose that a Justice of the Peaco, who c mnot re- neive an information on a charge of piracy, or ex- amine into the truth of sucli cliarfre if cognizable which tlie Magintrate could exercise a discretion or judgment, then the case would be very different ; but is such the case before us ? That the veaeei was seised and by force taken from the Captain and crew on the high seas, is not disputed. Uuaaswer- od tliis is a prima facie case o. Piracy, and tin- burthen is cast on the accused of justifying thi<« apparently wrongful act. The justiflcatiou set lip is that Jiostilities wvre existing butweeu tht in this Pro^'ince, should, if committed in the| United Stat.eH and the Confederate States oi United States, determine on the tiuttioienoy of the ower tolfare but plunder and profit: but at the present commit for trjal ; so that in thin caxe when it ap- i day the rights of private armed vesHols and private peared by His Excellency's Warrant that the <-rime charged was Piracy, Mr. (>illH>rt, whether us Police Magistrate or Justice of the Peace, nut uaving jurisdiction over such an oil'caee and no belligerents caiinut be doubted. Unless restrained by Treaty stipulations tho right to commission private armed vesaels is, by the laws of nations, cKteemed a legitiiuate means of destroying the newer to commit for trial a porsmi chiirgeil witli'comnierce of an enemy, and 'captures made by Piracy, could have referred tho matter to the| private armed veHHels of one bulligerent, even Judge of the Court of Vice Admiralty, or some; withont a Commission, though not in self defence, ether one of the Commissioners having authority ure not regarded as pirstieal cither by their own over that otfenoe and ]M)wer to commit for trial! (Government or by the other belligerent State. It persons charged therewith. To confine the Ma- gistrates and officers to their respective jurisdic tions is, in my opinion, in no respect to conflict with any clause in the Treaty but in harmony with it, and in furtherance of a execution of its stipulations docs not indeed ve»t the enemy s property thus Heixed in the captors, but the seizure would bo de> dared a prize of wnr tu the government of tht raptors ; uud it is eiiually tiuo that neutrals tak- proper and discreet |ing conimisBions au prlvtiteurs and acting on tlieiri Hre likewise free t'luiii the imputation of Piracy. But assuming the Ucquisition right and that {They may make theniHelves amenable for the the Magistrate had jurisdiction, we must consider violation of the laws of their own country, nnd the third Point. '1 lie question here raised waslniay denude themseiveR of the right to cliiim her ■■trguev well assured when they depre- date on tho slj'i>!>ing of a nation at peace with tht ^!ie to \^ horn tiiuy owe allsgiaace, and in oppoai- I "PUPPSIIP THE CHESAPEAKE TRIAL. .11 ditcretioD or diArvnt ; (JAptain min\ lluaoimiir- c^*, and th«< itifyinfr thiM iflontiou set betwevu tbtr Statni* oi inder a Com- tehalf of, the re it wan ait of a piratical IB doniad, ct under the ia mere pre- an illegal g in general. hivalric wnr- tlie present Is and private Its reatrained coinmiiaioii B of nations, latroyinK tit*- res made by Kerent, eTuu 1 self defence, >y their own >ut State. It property tliua would bo de- iimeut of tilt neutrals tak- 'tu\g on tlieiri DM of Pirucy. lalilo fur the country, And 10 claim her consequencvH ealt with by ire actiiiif a» n a very dif- BuUigwrents, without com t theiaRvlvev ider authority I hourd com- Jii/.ed oflicers. I oMiiitlitirity, Ij uxpeditioii country, and, ) uf, or ou th<: lit acts ou th«- d by btlligor- }t be held re- And there - tuts but sub- I ants of hoB- ni nutation oi 1 they ilepre- leace wiih the id io opposl* lion to tha municipal laws and neutral policy of their own Oovernmeot, and in direct detlAnce of th* express Proelamation of their Hovereigu, that they Are acting under the authority of a commis- sion which will bear the test of a strict legal serutiny. In the pr'rsent case, can it be said that this was made out so clearly and unequivocally that there was nothing for the Magistrate to de- liberate on— i:oth{ng tor a Superior Court or Jury to try ? Without exprescing the slightest opinion of the guilt or innocence of the parties, or the probable result of a trial either before a judicial tribunal in thia Province or in the United States, it will only be necessary to refer generally to the cTidence on behalf of the prisoners to show that the case is by no means so entirely free from doubt or question as their Counsel sssumed. lustead of showing that they were acting under a regular oosamiaslon, or were belligerents themselves, or thAt the expedition proceeded from the Confeder- Ate StAtes of America, it appears, so far as there i« evidence of tbt nationality of the parties engaged, that they were British subjects, that the plot to seize the vessel was concocted in this City, that the comsiission under which they cisim to act was uot directed to any of the persous engaged in this <-apture, nor were any of them named in it, nor tlid it relate in any way to seizure under circum- stances such as the present — that it was a com mission dated 27th Oct., 1862, whereby the vessel iffg David Collins, •' Ratrihiition." Thomas B. Power. Communflttr. •«» i ul ence whereshewasor underwhosecommand wLe& this expedition was {tensed itad exaeuted, did not appear ; nor was there Any evidenoe to show tbAt Any of the pArtiea eagAgad in the capture had ever been on board the " Betribotion" or in Any way connected with her. On the contrary, BraiBe, who would Appear to have been in chartre of the capturing par^, described himself on board the " Chesapeake," and was addressed by the title of. Colonel. Locke, alias Parker, did not nroeeed ou the expedition, (Miough be boarded her subse- quently off Cinui J Mauaa And took the command,^ but addressed an order to " Lieutenant CommAnd- iog John Clibbon Brmine," requiring him to pro- ceed to New York with let Lieutenaat H. A. °Arr, 2Dd Lieutenant Dwvid Collins, Ssiling MAster Tom Sayers, one engineer And crew of 22 men ; engAge passage on board the steamer, using his own discreflDn as to time And pfaus* of cAp- ture, to act towards crew and pAssengers in accor- dance with President's instructions and as cireom- stances permit — bring hia prize to Grand Hanan for further orders. This is signed John Parker, Captain C. 8. Privateer " ttetribution." There is no evid'^noe of what these parties were officers, or how or by whom they were appointed, with the exception of David Collins, and he appears to have got his commission of 2nd Lieutenant from John Parker. It is in these words : Retribution," Thomas B. Power, Commander, was authorized to act ns a private armed vessel fur the Confederate States on tho high seas against the United States, on the back of which c«>mmia- siun is an endorsement dated 21st Nov., 1862, signed Thomas B. Power, wheiet^y he traoNfera tbe command of the schooner " Retribution" to John Parker. The coroniissioa is pioved by proof of the signature of Jetrerson Duvis, President of the Cunledente Stutes, and ol the Seal of the Confederate (states attached thereto ; but tie en dorsemeut is proved by the slightest evidence of the hand-writing of* the aubscribing witness. There is no evidence of who tliis John Parker was. It was proved that at Nassau a Nova Scotian named Vernon O.Locke, who had been residing fur the laiit 20 years in the United States, and whose family is now living at Fayetteville, WAS last summer in the month of May at iNassau, in command of the " Retiibutiou," and that ha was there received and rccotcuixed as her Captain under the nameof John Parker. Whether he was reully the John Paiker numf^d on the Reposing contidence in your zeal and ability, 1 do hereby authorize and commission you to hold and assume the rank of 2ud Lieutenant, and this shall be your authority for any act, under order from me, against the Oovernment of the United States, or against the citizens of the United States, or against tbe property of either, by sea or by land, during the crntinuance of hostilities now existing. This commission to bear date from tbe 1st day of December, A. D., 1863. (Signed', Joiix Pabkkb. Had this commission been from Jefferson Davis it might hAV« been easily understood and possibly free from question ; but issued by a British sub- ject to A British subject, in tlie Queen's Doraiu- iouK, it is oertainlr a proceeding, to aAy the leAat of it, novel in its character and fairly challenging investigation. It is true, evidence was ofl'ered of uiilitary men attached to the Confederate Army, iihewing that in operations on land officers cou- minsioned to discharge a particular duty had, by the practice of the CunfeUeritte service, authority back of the comnii.ssion, or assumed that name 1 to appoint others under them toaetas oflicers to with a view of representing that ptrson, waa uot shown except as an ini'erence might be drawn from the facts one way or the other. This commission WAS produced at the Lower Cove meetings bv Locke, aliat Parker, but there is not a particle of evidence as to tbe whereabouts of the " b'etribu- tion" at that time or since, or that he was tlit^n CaptAin of her. In fact, the only evidence of her at all was her being at Naasau in May last summer. Whether th» waa in •xiitanceor not, or if in eziit- carry out such duty, and that such was a recog- nized custom of the service ; but the practice pur- sued by officersunquestionably in the service of tbe GonfoderAte States in the fiald. Actually eugA^ed in the WAr of the hostile territories, is not quit* conclusive as to U itish subjects And British terri- tory. U«t be All this as it msiy, ean it ba d«eiMd that the proceeding, if justifiable, was not, in many of its features, most irregular, And th* prima faeie case before the MagiatrAtA beiag on Tfwffwfr It THE CHBBAFEAKE TRIAL. the OB* huti «l«Mr, and Um a>lef*«d josHficttion pnftmtiar the ,irr«guUritiM •ni pMiiliaritiM.it did, and being" open ta ao mu^h questiort, ean tha Justice be fairljr said to have exeetHied hi* diaeretion if the reanit at which he arrived decid- ed tliat the evideuoe waa auch aa wttuld Jualify thair apprehenaion and cemmittal for trial bad tlie alleged oritte been committed here, leavidgr the priapuera to aubatantiate their defence before a ooopetent Court where the legal pointa could be propel ly determined, and where the queationa of int«nt and of fact or inference wonld be anbmitted to and determined bv a Jury. As at present ad- viecd 1 cannot aay that in this particular the Ma- giatrate arrived at a wron|( cunclUsion, nur do I think the UaRiatrutedid wrong in refusing to go bf^iind the Governor s warrar t and determine on the Boffieieucy of the Re^iAiaition to His Excel- lency. .Over that matter, I think, the Statute gives the Justice no jurisdiction or authority. Before leaving this branch of the case I cannbt refrain from expresaing my deep regret that any inhabitants of New Brunswick, being British rub jacts, sliould have been seduced from tlioir clear duty to their Sovereign, and have availed tlieni ao|ves of the hospitality of a friendly power by going into its territory ond obtaining a passage from one of its porta, on board one of its ships, and, byastrategero possibly justifiable by the usagen of war in a belligerent, have risen against an un- armed crew peaceably engaged in their lawful caUing, and dispoiled them of the property under their charge, and that too with an amount of vio- lence resulting in the death of one of the. crew, which, under the evidence in this case, would not seem to have been necessary for the accomplish- ment of the eud sought to be attained-ran ex- • ample, I may be permitted to add. I earnestly trust will not be followed by any of Her ilajesty's loyal auluects in this Province. trcniformed an affidavit intended, aa the Consul ■ays, " to be presented to His Excellency, in cast- he. Mquires evidence of the criininalty of the per- MUs charged with the crime of Piracy before lasning the Warrant for having them brought to tTial,'Mnto a charge by Wi|Iet and Henderson ol Pirat7 and Murder. The Valuelessuess of this document, either as a charge or a veriHcatiob, I have already shown ; but where the allegation that the alleged offences were committed in the juris- diction of the United States was obtained lam at ft loss to •;onceive, for neither the Consul nor Wllleta nor Hei.derson says anything about it. nnleSfl it was assumed that us there coufd not be a Rediiisition for an offence unless so committed the offence alleg^must'necessarilybaVebeencom- mitted within thenecesiaryjurisdiction. Again,thi» Warrant doem not allege tliat tha Bequisition was niade on the authority of the United States but on behalf of the United States, by no means con- vertible terras, though it is true this allegation iit preceded by the averment tlmt in pursuance of and in acrordanre with the iaid Treaty and Act h Keqnisitlon hau been made, Ac VVitii tliese exceptions the Vnrrant of His l^xcellency appears to bo in strict ctmformit} with the Statute. Mr. Gilbert's Warrant then, as we have f e.in, proceeds to recite that on receipt of this Wai rant he examined Isaac Wilk-ta under oath touching the truth of the charges set forth in said Warrant and upon tha evidence of tiie said Willets, on the 25th of December, issued his Warrant for the apprehension of the persons upon the said ctmrges ; and on ruference to this ex- aminatit.n I find it is headed: "The complaint of Isaac Willets Sic, taken and sworn to this 25th ds^ of Dec, 1863, before me H. T. Gilbt it &c., actiuK under a Warrant undtr the hand and seal of th*- Hon. A. H. Gordon, d'C. The said Isaac Willets being duly sworn, saith Ac" It then 'i« tiils with As to the 4th objection. The Commitment firstjparticularity the circurastancPs of the t a; tui c unu Wta out, as We have seen, the Warrant of His I alleges farts not before anywhere f*rate<), naruuiy, Excellency, whichallegesthepartiestobechargedlthe registry of the T'essel in the I'niled 8tate»< upon the oaths of Isaac Will«ts and Daniel Hen- 'ef America, that the vessel at the time of captutf denon with having committed the crimes of Piracy and Murder on the High Seas within the juris was on the hii;h seas about 20 miles N. N. E. ot Cajw Cod in tho United States of America, and it diction of the Uk.ited Ktatcs of America, on the 'avers a malicious, wilful, felonious and piratical 7th of December, then instant. Now wliere arelRfsault on, and putting in bodily fear and danger theae averments obtained by the legal adviser of the Governor, who, I presume, drafte<] the War rast ? Reverting to what has been said as to the Requisition, not a word is alleged by the Consul of this crime of Mnrder, and not a statement made by him that either Piracy or Murder had been cumutitted within the jurisdiction of the United Statea. Nodoubt, the legal gentleman who drew tl^ Warrant Mt the ditficultv of tho wrtnt of h diitfn«t charge, and the absolute necessit} of the avannant that the crime waa committed within tha United Ktatas of America; hut as there- was Bcithw of these i>articulars in either of the letters af tha CSonnul he^no doubt from necessity, resorted to tha affidavit tlWMmiCteil therewith of Willets and Henderson, and from the facts stated by them of.their lives, the Captain and mariners, and the malicious, felonious and piratical taking posseRsion of the vtsAel and cargo ; and that they did then and there wilfully, maliciously and feloniously and violently steal take and carry away the said cargo ; and that they did with a pistol loaded with powder and leaden bullet shoot and felonious ly,-malicioii8ly, wilfully and piratically kill dnd miiMe^ono Oiln tjchn'ner, thi ^cond engineer; and in the i>ame langtiage and manner shot at and wounded in the right knee one Charles Johnson, chief mate ; and in the same litngiiage and manner shot and wonndod in the chin JameS Johnadtf,' chief engineer. Now, With all respect for the PoHrc Maaistrate, I* think this was not the proper mode of proceeding ne, THE CUB8AFEAKE TRIAL. 1> la the Consul lency, in case J of the per- *iracy befor« m brouK^t'to Henderaon ul iBUeBI of thiM reriflcatiob, I illegation that 1 in the jurit- ained I am at e Couanl nor liing about it. I could not \k ■o committed laVebeencom- >D. Again, thi* iquisition wa« ted SUtes but 10 mean* cbn- B aUegatiou it pursuauce of saty and Act h rrant of Hi» ct conformity Varrant then, :hat on receipt Wjllets under ;;eB set forth in nee of the said er, issued his ' the pereoDB 'iicetothisex- e complaint oi' this 25tli da^ it &c., actiuK nd seul of th»- Isanr Willifts en li tails with be < a; luic una ituteil, namely, T'tiited StatcH ime of capturf CH N. N. B. ot merica, and it and piratirat lar und danjcvf iners, and th^ dng poBseBsion tliey did then' nd feloniously iway the said 1 pistol loaded t and felonious iciilly kill anil ?ond engineer ; her nhot at and lorlos Johnson, i(^e and manner ames JohnadB,' ■0 MaalBtr*te, 1* 9 of proceeding When he reeeired theOovera<|upon th«groundthatasthecotnDit|ntntwMna4«r« liog he had jurifdiotioa t« jMA(»9cci«| St»tatwy •utfcority, the term* of the einn* ^ mitf nenl: must be apecial and exactly pu/Mie ti»t " •uthority, aciiaf an and recognising the aatbomy: or Maaha' Mae. 2 Wm. Bl. 806. whara i« It « in tbe warrant pt t|i<| laid a^)vn tjiiat the traa diatinotion is that #lian ' QoveiBor ; and as thia waa hia aole authority to a. man ia.commitiisd far any crime, either at Oem< ' (ct, he ahould have confined hima^Ifatrictty with- mon Law ocereatad by Act of ParilamaBt, for '' In ita requirenents, which was siibply in the ftrft .wbiiph he. is pMniabaMe by indietmant, the|i ho ia iuatabce to aid in apprehending, the persona ,ao- to be committed until diaehargad by due OOUitii^ of cuaed which he ahqu|d liare dona by iaauing h^ j^w^.bpt when it is in pwrsaaneo of a HpitM Warrant reoitlug t)ie Oovemur^a Watfran^tr thf aatiibrity tbe temauf conmitnent muat ^ apaoW oliarga tlierein cuplaaed against the briaoQjB^ and azactiy paraoo that authority. ' '•'' '^^ the requiremoqt impoaed on him theftby. ahd xj,. eommitmaat than proeaoda to' itar'ltiat commanding the appreloaaiou of the MmafOie priaonera having been brouBSi bSfeW Mia oamad thorein. and should notbaTe reoelTodi j^rtlce under the Wartaht, and ho hMwK wo- aew complaint nr introduced now chargr* <» ,aoded to ftho ioTeatigation of (he aba&a of BOW matter against the accuaed. ^ The cor- pj^y charged againat thi)m. aqd upotaos|n- indertbe Statute. >r's Warrant, aaaumiog ... -> inder iti he ahoold havo takrn no freih OompIfUnt. (le ahould baye ambcdied nothing in th« orm of a conplaiGt or cbar^ againat the .priilOB- Ts bu^ What waa contained ii^ the Warranfof tho .^ f. , liameat, require and command the said OuhaMblo mo jUnai t<> coBTey the prisoners to the Common Ja^, and tbe forms th«re givi HOTiug ao exauiBod Isaac Willeta, commitment recites that upon the eviopnce ^^jiy^ e^ch ofthem to the Keeper thereof UDOB „J the Buid Isaac Wi lets and i'» punmance ^. „, ^f pj for that f hey haYiugoO tho ot the Act (f Asaembly, ho uwuod hw War- 74^ day Sf December. Ac, und tten nro^To rant^iirectingthaappreiienaion of the parties to. i^oapitalate the par.ticiilars of.the oh^gflTtto the ., anawer, nottlio eliarges In tlie Governor's VTa**- rantc but tbe complaint of Isaac Willets made, bo oath for having 4r., m the words which I botofeo mentioned, to be dealt with accvrding to Uw, the said etalplaint baring been made and taken, Md this Wairant having been isaned in uurint^u^ of a Warrant n nder t lie hand and aeal of tha C^iff «riH»r«ftc., in which, however, ijup C(uiitriiii|i.rato differ iMSB the learned Ptihce Magistrate, the Warrant of the Governor not authorising tMr taking of anch cooiptuiut nor the arreetuyg tho parttea to be dealt with uccor iing to law, but., IB tbe word* of the Statute to be delivered up V>J<>*' ticvaecoidiBg, dc, and had a^ appliMtlop &«^ made (o diiir'tiarme the prisoners whiiO (\^tamed under this Warrant 1 do pot see how it coujdj^aval' beeB auocosotully resisted, Baaaet's caae ^,, Q. Ji 485 being a dire«-t authority aja'atnat it in one poitat. 1 hat |Ea« tho first dt^nuit nndor. the i!'vt>B«h,a«l- ventioii. Ac^ i Kud? V)o., .ChoD* 74i whJob iaia oomplaint made before him by Ifwati WU)et|M>mi^ ting the fek>nioua, jfc, m^rderi^ld|lh(><'l|ngU)^|iiMo tooiain till deliver^ pursuant, to tho H^^iiIjrfUoa aforosatd. On raftoring to the «xarafnAf(ana lb selVos, we findthechargd on which tbooxwIniJ piiQoeodod wa^^f an ofhuee wh|ch |t'4l|«|qiMfL aae -ob the High Seas, 4at «f' Ctope Ood, in the (ieo, and within th^ iurildi^ti^n, i^ ^0 ij^tted about .. UntlM. 0!ov^rnur> Wait^nt . j^ijlaH jp wo iu(!9 no wcooaidt^rimiT thV"Wior^i»iof'*hiilli«Hrt •h*' tbo..aan.O .,ior^ as ,^,.Aipeyi.00n .Tj-H^rA^ltg^jftJ^'^j;^^^ Statea »t Aueriea, aOd the <. againat the lafva ofthe Uni^ and tlio atatutea of th,e IJnitra Hiiag Britain and Irt^lsnd^ So we (too tUac at aver ot thoae proeoedii^pB tho. charge aaaumaa f < ^aaa. ■ ''' *'' '' 'In the.Qret inaUooa tlio Conant :»Knp|y,: BM* sonta tho ,coBirfaint fa thrt q|^rt|ii jp^wat^ w gntftj of the orioM of Pli«v. TIn ra<^'PInM3r tiM i« MaM( tbor<^ sot out t^t MioCl»aH»VI* «»C«^>P«W B^pjltfot af Tj*^'****** b«i5»;iHtfgodhMrrfflw*o.,lw tl«>%«^d.4-B; tf^^ iBaiKql^i^:;uf.ilftriur oB, and before the oommittHit there waa aomrthinir to be done, an all impurtant duty to be dianhargad, which I cannot diitoovar from tbe Warrant or from any of the pro- oeediuga before ne, and I can lo'>k to nothing ehe to have been performed, and which, if done, I think ahould clewly, anequivooilly and unambigo- oualy appear on the faoe ef Warrant, which it manifestly doea not ; and that ia, th»t after hearing and oonaidering iheeTidencu, the Juaticedetermin ed Md a(^ndi(Sated tliat he deemed the aame auffi' cient according to the lawa of thia ProYince to .juatify the appVehenaion and committal for trial «>f the prlionera, if the crime bod been committed witbtn thia Province. Without auch an acUudioa- tion, the Warrant of Commitment oonld not ia- aue, ODd withont Huch Ai acUudication appearing on tha fkoe of it when iaaued, I thiak the Warnuit badi, there being withuut it a want of juriadiction ahown to isaue the Warrant, or perhapa rather a woAtof juriadiction to auatain it ; and thia view is oonflrmed by referenoe to 8 and 9 Vic, before re- ferM to, for even there where a atatutory form ia evtm to be uaed by the Police Mogiatrote (tf the etropoHi, the adjudication ia aet forth. The form given ia tbua : ** Be it remembered IhatoB &e., A. B. Ac, ia brought before me, J. P. Ac,, and ia charged before me for that hoi thAaaid A. B., Ob Ac, within tha Juriadiction of the United Btataiof Aneric* did (here atata the offence); and foromnaoh aa it boa b«w ahawnto me. upon auch evidence oa by Xiaw ia aulBcient to juatify the uoiuuital to #ail ef the ifid A^ B. puraaant to an AotpuMd iatheTtli year of the tMm ok Her M^Nty entitttled A«„ tbat tbe aaid A. B. iaguiltv «r tne aaid otflenoe, thia ia threfore to conmaod, * c.*' The coaea to be Ibund bearing oaltbia poiati lay doWn the principle very clearly, aonie of whieh I will quote. In Be Peerleaa 1 Q. B. 162. Thia waa « Wwtaint oetthig forth a conviction— Denman C. 3 . Mart ** Tbe Magintrote hairing no juriadiction •xflvpt by the ez(kMBa Statotary enactment, tbe offettea m not here described tufficiently to tfbow jorieiiction." Per Xittiidale J. " I do aet aaythatttiia may not he a good conviction upon Vhtflli • MOd Wailtwat might be fl-ttaed, but I . •hiak thia warrant clearly bod for not ahewing •»▼• _ JurkMltotion." -inwkatway itia that Juaticea *>>• <:*** oeedinga." And Beat J. aaya : '*It ia • aatUed pria> ciple that penal Statutea, and auch aa create new juriadiction ahall receive a atriot oonatruotioa, Naah'a .caae 4th B. and A. 296, waa the caae of a warrant iaaued under tbe &7tb George 8d, Cap, 87 Sec. 6, by which Act, in caae any peraon, found on board a venael liable to forfeiture under 40 Gwrge 3,Cap. 121, be fit and able to aerve Hit Mfcleaty in hie naval service, he aholl upon auch proof oa by tbe said Act of the 45th year aforeaaidt la teq^iired, be committed by audi Juatke to prison to onaver anch information and abide auoh judg inent Ac Abbot C. J. saya : — " This Act of ParltameLt of the 57tli ytear of George S, Cap. 87, ta one lAj^hly beneflcial m preventing ftauae upon the revenue, but at the same time, inaamuch aa it tronchea very atrongly on the liberty of the subject, we must take care that ita proviaiona are strictly pursued." And again: " these ei^ eumsitances stated in the introductory part of thio return seem to me quite sufficient to warrant tMt eomtnitment, and if it had bef n atated upon due proof ef the mattora before mentioned the uriaon* er waa committed, I should have thought It auf* flcient." And Per Holroyd, ,T : "The power of th« Moglatrate to commit dependa on the proof bofora him, and the Rule ia, that where a limited authority ia given it muat bo ahown to have been atriotljr poraued." And in Christv «« Unwia, 11 Ad. and El. 377, where tbe validity of an order auda bythe Lsrd Chancellor under 6tb, Oeorga 4th, Chap. 16, See. 18. was queatioaed, it waa held that the order muat ahew on the iace of it whatever waa neceaaary to give juriadiction. And Coleridgo, J, aaya: We cannot intend for or againat tbe order bnt muat decide according to the worda. Uowavw high the anthority may be where a Statutarr pav> er ia ezerdaed, the peraoa who ai'tomust taM CAN to bring bimaelf within tbe terma of tha Statute whether the order be made hy tha Lord Okan* eellor or by a Juatice of the Peace. Tha facto which gite the authority muat bo stated." Thia caae ia, I believe, the fltat nnder tha Treaty and Aet of Parliament thft lioa called for Judicial inveatigttion in thia Province, and as pdate of a novel, certainly of a peculiar, and I may My of a delicate, certalMyof an important ebaraeler raised, I have Mdeavored to give the meet careAil eenatderation, and In Vava Jnriadietio., ought to appear by the Wafnmt, t^L^jL^J^S^SLlL !SteJSlSS,??h'a«* 1 fooadnyNlf on I-oid Tendwden'iladkmuiitita *• "W^ <» *?™°° *» ®TL^?**J!2' L"* ^' KiSrraZSTcaae'?! P..and€.lOI.. ASTcotd- S |r3t^**!^2^S'^l* Ih^^SSUft ridMl. aavr "Br alegal Warrant, I mean n War- •* *•' "* •» inbjeetlngmyaeif to the ohorga of taln^ndlUtri^btcaonotexiat unless there be ju.J««»i««»»»,»« '*?^P**«*i*! '''!S°??*V*'* *!25* riadSlted In t& lEMrfJtraty.^To Am^mM STK ^•"JI^lSfSSl'briLS^^ m^mmmt^p^n «^w of-thot>roc«Mn|i.(si!6 22 £tI?li2^l5S! KKI^ffii^^ •a te all a«to*ion« 'by' fitgistrAtttii tkat tfiie Jurti- In tbe i>roijipt manner in which Hia Bxcelleney ahoold appear on tbe face of their pro- tha Lieut. Governor granted hia warrant, and in .,»,- THE CHESAPEAKE TRIAL. 14 . I deUriuinktioQ •{' the Police Magintrato on the ieU of the oan, the Oovernnirnt uf the United ftatea cRnnot fail. I think, to discern the deter- linktion of the Queen'* Repreeentative and Her llbordinate offlcera fuithrully and honorably to irry out the Treaty entered into between the jwpeotive UovernmeutR of the United States and Ireat Uritain ; and the preseut docii*iun. the re- kilt uf ny own Judicial conviction!, bein|i(, I be- |leve, in conformity with the legal authorttiea of ho United Htatei, individually I miicht hope it vould flommend itnelf to the United States Gov- ^rnmant ; but whomiuevcr it may please or dis- please must be to me, judicially, a matter of in- liffernnon. The only duty I have to discharge is ) my Sovereign, to the people of this Province, (qiJ to my own conscience. That duty is, fsitb- iillyi to ths best of my humble abilities, impar- lially. to deolars tlie Law as I believe it to be, vholly regardless of consequences. Tbidl MTC honestly endeaTorodto do, and tha result of my Judgment is, that for the reasons set forth, the prooeedings befora me. and tha "warrant of commitment, returned to me by tha Sheriff of the City and County of Haint Johh. do not justify the detention in custody of the prisoners, whose imprisonment I therefore decUra illegal ; and I do by this my order require the immediate dia- oharge fVom prison of tha said David Collins, James McKinney and Linus Seely, under the said warrant and commitment ; and as it appears to -,ne that the SherilT of the CitT and County of Saint John, the keeper of the Jail of the said City and County, acted upon the warrant or commit- ment of the said H. T. Gilbert, according to the requirements of the same, without malioe or evil intent, I do, by virtue of the power conferred on me by the Act of Assembly, exempt tha said keep er of the aaid Jail from all civil suits which may be broufrht against him for or by reaaon of having acted CB the said wanant or commitaoeat. I