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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner. Ie*t to right and top to bmom, as many frames as required. The foll&.«ing diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre film6s d des taux de reduction diffdrerts. Lorsque le document ost trop grand pour dtre reproduit en un seul cliche, il est film6 d partir de Tangle sup^rieur gauche, de gauche 6 droite, et de haut en bas, en prenant le nornbre d'images nicessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 r* i g)€'DO'0^yOO^!»QT)Q'D.CyOi> g^e-^ •' f^Z ' LZQZ^> T^O'BDt €mOf^O^O^ ^ ,' tHM-... •| "THE CHESAPKAIE.", ■6^ THE CASE OF (I DAVID COLLINS, ET AL., \.) • *■ . V i) PRISONERS ARRESTED UNDER THE PROVISIONS OF THE ^j , .* IMPERIAL ACT, 6 & 7 VIC, CAP. 76, h ON A CHARGE OF PIRACY, INVKSTIGATtD BEFORE HUMPHREY T. GILBEET, Esq., Police Magistrate OF THE City of Saint John, ( ► AND THE ARGUMENTS ON THE RETURN TO THE ORDER OF HABEAS CORPUS, J J HIS HONOR, MR. JUSTICE RITCHIE, BKFORB WITH HIS DECISION. COMPILED FROM THE ORIGINAL DOCUMENTS. i i SAINT JOHN, K B., J. & A. McMillan, publishers, 78 prince william street. 1864. aQ(!^a(y3>0a i O'Q»fflaaxaQQ>O'QjgQQ^agOg^'aQ^gQ'O'QO^Qg'QO^Q^ ^ i mmm f .y V ] 0^ ■M:. "THE CHESAPEAKE." THE CASE OF DAVID COLLINS, ET AL., PRISONERS ARRESTED UNDER THE PROVISIONS OF THE IMPERIAL ACT, 6 & 7 VIC, CAP. 76, ON A CHARGE OF PIRACY. INVESTIGATKD BEFORE HUMPHREY T. GILBERT, Esq., Police Magistrate OF THE City of Saint John, AKD THE ARGUMENTS ON THE RETURN TO THE ORDER OF HABEAS CORPUS, BRFOat HIS HONOR, MR. JUSTICE RITCHIE, WITU HIS DECISION. COMPILED FROM THE ORIGINAL DOCUMENTS. SAINT JOHN, N. B., J. & A. McMillan, publishers, 78 prince william street, 1864. » ». . .<: I ■» '1 ii c I tl t] C o: o u n. p] 0] tl tl ai The importance aud peculiar circumstances of this case have induced the publishers to present to the public all the pro- ceedings taken before the Police Magistrate, and also before His Honor Mr. Justice Ritchie, with the evidence in full, and the various documents on which the arrest was made, together with those produced in evidence on the investigation. Every effort has been used to publish a correct report, and the publishers in the compilation, have had the assistance of Charles W. Weldon, Esq., one of the Counsel engaged, and of William M. Jarvis, Esq., the reporter to the Law Society of Decisions at Chambers. As this is the first case which has arisen in Kew Brunswick under the Treaty of Extradition of 1842, and the object aud nature of the tenth article of the Treaty, with the mode of procedure thereunder is so fully discussed, and other questions of inter-national law presented that the publishers believe that the publication will be of interest to the people not only of this Province, but also to those of the neighbouring Colonies, and- the United States. "THE CHESAPEAKE." DAVID COLLINS, ET AL. Shortly after the retaking- of the Chesapeake in Sanii^ro, Nova Scotia, some of the original captors having returned to this Province, the United States Consul in St. John address- ed to the Hon. S. L. Tilley, the rrovincial Secretary, two letters under date 22d Dec, 1803. "■' Accompanying these letters was an affidavit jointly made hy Isaac Willett, Captain, and Daniel Henderson, second mate of the steamer, detailing the ^acts within their knowledge concerning the capture of the steamer; the said affidavit having heen sworn to before II. T. Gilbert, Esq., Police Magistrate and a Justice of the Peace for the City and County of Saint John, on the twenty- secoud day of December, A. D., 18G3. On these papers His Excellency the Lieutenant Governor issued a warrantf under the provisions of the Act of Parliament G and 7 Vic, cap. 7G.t Air. Gilbert, on receiving His Excellency's warrant took the complaint § of Captain Isaac Willett, and on the 25th day of December issued his warrant 1| to apprehend certain persons therein named, and upon which Avarrant David Collins, James McXiniicy, and Linus Seely, parties named therein were arrested and brought before Mr. Gilbert for examination on January 4th, 1864. Andrew R. Wetmorc, Esq., Q. C, and William H. Tuck, Esq., appeared for the prosecution on behalf of the Federal authorities. Hon. John II. Gray, Q. C, and Charles W. Weldon, Esq., appeared for the prisoners on behalf of the Confederate States. •Soo Appendix A. tSoo Appendix B. +Scc Appendix C and D. 2Seo Appendix K. ... r ,> "■: •■, BSoo Appendix F, !fflli CBJESAPKAKl:; CASK. B3S: I'llKLIMINARY EXAMINATIONi Before the cxamiiuitioii commenced Mr. Gray asked Mr. Wctmore to elect upon wliicU cliargo lie would now proceed, und to state in whose name lie was proceeding. Mr. W. replied that lie would only state that lie was proceeding upon the complaint of Isaac AVillett. He ilrst stated that he would take up the charge of murder, and subsequently decided to proceed with that of piracy, in the first instance. Mr. Gray then objected : 1. Tliat this ('ourt has no power or juriflJiction to try for the oflencc of Piracy. That for the trial of Piriioy ii Hpcoial (JommisHion musi, isBuc and a Court be •pecially constituted for the purpose ; and that such Court is distinctly provided for by the Imperial Act. 2. That the Warrant was insufl'icicnt. It does not show upon the face facts which ore cssentini, under the Trcrty with the United States, to bring this matter into the Courts ofthiH Province, or to create the special jurisdiction, which enables us to arrest parties under those charges. [Mr. Cray cited the case of Dillan, charged with an olTenco on iho soa beyond Provincial jurisdiction who was arraigned before Judge Parker at tho last circuit, and discharged. And Mr. VVcidon cited the case of the brig Eliza, in '47.] U. Not only is the Warrant insufTicient on these grounds but on the face of it is bud, as charging two distinct oflences triable before two dill'ercnt tribunals. There ought to be two Warrants. Mr. Gray thought these objections fatal to any proceed- ings. Mr. Wctmoro replied at some length, and read a large portion of tho Provincial Act passed to give effect to the Ex- tradition Treaty. lie claimed that everything so far was regular, and that the ^Magistrate could not go back of the warrant, which was sufficient authority for him. The Magis- trate told Mr. Gray that there was probably something in his argument ; but that at present he would 2>roceed with the preliminary examination, and if he decided before tho case was through that he had no jurisdiction he would give the prisoners the benefit of it. The following "Witnesses were then examined : EVIDEXCE OF CAPTAIN WILLETT. Captain Isaac Willctt sworn : Am a citizen of the United States— live lu Brooklyn — a seaman for ;}0 years — know tho Chesapeulc:, owned by H. B. Crom- well, also a cil zcn of U. S. — was master of her in December, and had been for 17 months — she was re-built in Now York about 3 years ago — previous to that she was called the Totten — [Mr. Wetmore asked where slie wot registered 1 Both Messrs. Gray and Wcldon objected to the question as improper. The Magistrate agreed with them.] During the 17 months the vessel plied between New York and ortland — she had a coasting licence. [Mr. Gray objected to any evidence respecting contents of this licence; objection sustained.] He had the paper until it was taken away from him on board the ship. On the 4th and 6th Dec. I had charge of the Chesapeake^ then lying in North River taking in cargo foil rif Bii V[ wl UtI StI ■01 w a 111! fri DAVID roLLINB, KT AI. for Porllftiid. MoMt of the fr ;{Iil \vu« taken in on llic r)tli, Halunluy. Mlio rnr- rird paancn^irra nloo. I naw thcHu tlircc inirioncrM on liunrd on the trip in qurition. 8nw thnm lirtit ahoui mipinT tiino, iilioiit nix o'l-lock in tlu' ovojiini;. Wo left New V'ork on tins fttli iJci-cnilirr ; I was in tho wlircl Iioiiho wIumi llio vchscI left the wimrf. 'I'licy diii not liny ticketH, |iaid their nioni-y on liourd. I idi'ntify Collin* and rocoffiii/o tho olIierH. I wrote their nnmci* on a piucc of paper and gnvo it to StewardcKs to arrange roonn for llu'm. [VVufrnore asked the noint'H of the olhcr per- sons on hoard. Gray oiijceted ; oltjeclion over-rnleti.] 'I'liere wax a person wild culled himself John f". Uraine, Hi'd he wum (%)Ionel. I'nderstood there wan ft pemon named Hrookn — don't recollect the names of 8ci'ly and Clillord. All the pnHUcnRerii paid their paHanao except two. We jiroceed direct lo I'orlland from New York ; do not call. The veHnei, a iiropeller, was worth 1»>H(i,000 to !jf 100,000. There wan no diKturhuncc until Monday morniuf?, Vth. We were then ahoul "0 niileb N. \. E. of Cape Cod. Cape ('od is in tho l.niled StatcH. .Ahout n quarter past 1 in the niorniuR, thc^ lirKt thitiK I knew, tho ('hief Mate, Charle* .lohuiton camn to my room ami called me Baying Homchody had hIioI the Necon' the "parties. 1 saw no marks of vi-dence on the JJngineer, 1 ut I saw marks of !)lood where his head lay. When I walked forward I was goin;jc into the pilot house, when I was collared and a pistol was put to my fice hy first Ijieut. H. A. I'nrr, who was in the pilot house, lie collared me and said I was his prisoner in tho nuine of the Wouthcrn ('oniederacy. Parr put the irons on me — two or three others stood hesido him. They seemed to 'le standing there doing nothing. He put hand-cull's on each wrist. 'J'he irons could h? made small or large. 'I'hoy put me into my own room ; I could have come out when I jijeaseil. No \ise lor them to lock the door. I don't know what heeaine of the hody of the Second En- gineer, except what I heard from the others. I was confined an hour, when I'arr and sailing master Uohinson cimi! to me. They didn't say much, hut took me into the cahin — there I saw some of the other passengers w!io were not conceriii-d in tho aflair. V\''hile I was there the chief mato Charles Jolin.ston and chief En- gineer .fames .lohnaon were hronght in wounded ; I had heard reports of fire arms. The mate was wounded in the r'jiht knee and left arm. The wounds ajipearcd to 1)0 made hy pistol shots. I saw the leaden hall taken out of the mate's arm. Ho suflcred considerahly from the knee, not so much from the arm. Lieut. Parr took tho hall out of the arm, 'J'he chief engineer was wounded hy a ball in the hollow of the chin. Parr said ho would get the halls out of them if he c" M, and fix ihc wounds. Tho chief mate laid on a lounge until he was put on 1 ard of the Pilot Boat. I remained ill the after cahin until 8 next n'orning. Tho ^-ons were then taken oiVnnd Hohin.-on went up to my room on deck with me ; I was in the room a few minutes and returniul to tho cahin. \\'hen on deck I saw Collins and Seely there ; Seeiy was scruhliing brass on one of tho timber h.^ads ; the others did not appear to b-j doing anything in particular. Col. .fohn C. Braine took my ship's papers from nio in tiie afternoon hefore I was landed in tlie Pilot l3o:it. Ilraine seemed lo have command of the vessel ; she was taken from me by these jiartii's, against iny will and consent. I saw Mr. McKinney on board the vessel. 'J'hey seemed to be about the vessel and appeared to be eating the grub up as fast as possible. Don't recollect of seeing McKinney doing anything. The |)erson who was navigating tho vessel was named Robert Osburne, a passenger, one of the six who booght tickets in New York. None of the parties named in the warrant had tickets. The first land wo made after they took possession was Mount Desert. I nsked them where they werf going. 1 1 9 THE UiiESAPEAKE CASE. ■I they Haiti Grnnd Manan ; I aslicd wh^rc thoy intended »n land mc, they said St. John. Mount Do.sprt if on llio AmcriiMn roast east of I'orllanJ. I would not sec it if I were prosciHitins a voyacre from New Vorii to Portland. Alter passing Mount Desert we Haw lanii east of that ])laee. We jiroeecded to Seal Cove Har- bor, Grand Miinan. 'I'he boat was lowered, tlirce or four men went abiiore, remained a little while anl eamn on bond auraiii. when the steamer iefti.nd came up the bay to St. .d7. lie asked for the money he had paiu over lo me ; it Wi's my empliyer'n money ; I knew it would be worse for me if I dill not ; I handed il over a;^ai:ist my will ; Urainc had a pistol in his hand p.t the imc ; I handed money, fihip'.i papery antl j)crmits to hivn. The " papers" were the ship':; " coasting licence" from the New Vork Ci:stom House, under which she was coasting at tlic time, a • required under the .\merican law After this tliey CDraine and Parr) took me away from the room, took me nft and or- dered me to stay there. W? thi'ii saw a pilot boat. We were on our way to St. .lohn. 'J'he i)ilot boat ordered us lo stop ; tiomo one i!amc on board the steamer from her, stayed a few minutes and retuiiied. 'J'hen Captain John Parker came on board and api)aretit!y took command. They then took the pilot boat in tow and steamed up to J)ipper Harbor. AH of tlic jiassengers and crew, except two engineers (James Johnston anJ Auguste S(ricbeck) and llnee liremen (Patrick Connor was one,) were ])ut on board the Pilot Boat. The liremen and engineers were kept against their will. Those who went on board the Pilot Boat were myself, Charles Johnson, the chief mate, Daniel Henderson, three boys and four sailors, whose names I do not recollcel, the su-wanless and live passengers. One of the passengers belongs some thirty miles oaik of St. John the othci four be- longed to Maine. These live passengers had tickets. Ivobt. Osburno remained on board the C/tescpeahe ; he also ha 1 a ticket. T!ie sli>amertowed the boat some five or seven miles and let go of us ; we were put on boiid the boat about five in the evening ; that was the last we saw of the steamer. I landed in St. John about •f ""• on Wednesday morning, I got a boat from a big ship near Partridge Island d came to town with four of my men and two [)as.-(.'ngf'rs. Prom the way the parties acted in my steamer I was afraid of my life. Everything was taken against my will. I saw one or two of these prisoners on watch ; they were on deck. I supposed they were on watch. 'I'hey seemed to be acting as other men would who were on watch. Braine's party assisted him in charge of the vessel As far as I know these )nen were assisting him. I did not see them making sail, or shoveling coal. I don't recollect of seeing Colli;. a or McKinney doing any- thing, except beini on deck. Cross-examined by Mr. (Jray : — I don't deny there has been war in my country for two or three years between those calling themselves Confe lerate states and the United States. [Mr. Wetmore objected to this as an improper way of proving a state of war. The Magistrate did not think this evidence could be shut out.] I can't remember how many States are called the Confederate StLiCs — Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, (about one-third of the latter). Abraham Lincoln is Presidcntof the United States, and Jeff. Davis President of the Confederate States. I never heard of Mr. Benjamin, Confederate Secretary of War. I have /»li-wiW«"i««»rf'V»«M*"'' DAVID COLLINS, ET AL. cy said St. would not tor passing Cove Hnr- !nt abliore, . i nd camo and Parr ; [Ic ordered oncy I I\ad icy ho had irso for mo is liand p.t " papers" use, under iw After ift and or- vvay to St. lie steamer rkcr came oat in tow xcept two 1 (Patrick engineers 3oat were s and four ers. One 1 four bc- romaincd boat some ut five in ohn about ge Island way the as taken were on thor men c vessel king sail, sing any- «cript a copy of Capt. Parker's order to Braine, (which Captain Willctt had published in the N. Y. Hi-rr'lfi and otlier papers), and iiskcj tlio Cnptnin if the copy wajj correct. 'I"he witness said it was nc.iHy correct. The name of the S.iilinij Muster in the copy hande I him by Braino was George Robinson, not Tom Bayers ; the name of the Engineer wa« not (riven ii; it, and the number of the men Btated was 1 1, not 22. In other respects Mr. Gray a copy was correct.]* Tho Confederates kept of my private property, one double barrelled gun, one single barrelled, 5 five barrelled lovolvers, and I six bnrrellcd revolver, (I did not come oulcf my room " in wliU they call my shirt tail.") They kept me nft and plundered my room. They took 3 coats. I missed the n when I commenced to pack up. I brought ashore my cluck, d charts, sextant. 3 books. The passengers also brought ashore their own thing:". I ilid not see Brnine give the pasjengcrs money to take the.n back to New York. 'J'hc crew brought part of their things asl>oro. They put us into the Pilot Moat six or seven miles this side of Dipper Harbor. I did not see nnil d'i nJt know that the Confederate fl ig was raised over thn vessel. They fired two shots at me, and I don't know how mai.y more. 'I'ho first two shots were fired at twelve feet. They must have been bad shots. The Chesapeake had two six-pounders forward, and of ammunition half a keg of powder. iVo cutlajsess. The Confederates who cut out the " Caleb Cuahing" at Portland were sent to Fort Warren ; I have heard so. The Ckesapiake was engaged in retaking the " Caleb Cushing." I saw the Confederates who were then tckcn : they wore sent to Fort Preble. I do not know that those Confederates were ever tried ns pirates or in any other way. Ony Liout. Parr told us that their party was acting. for the Confederate States. They nil seemed to be working together, and were working under Parr ami Braine. I wns not at Samhro, and did not sec the steamer after I goi into the Pilot Boat. None of my crow to my knowledge were kept in irons the next day — the day after the capture. I never saw or lieard of Braine or Parr before. Re-examined by Mr. Wctmorc : — I have heard the Confederates called rebels in the Northern Stales generally. The '< Caleb Cushing" was lying at a wharf in Portland Harbor when captured. Braino was calleJ Colonel : the parties all seemed to be working together. I cannot tell whether Braine paid the passage of these three men, the prisoners. January 6, 1864. BTIDEKCE OP DANIEL UENDERSON. Daniel Henderson, sworn — I belong to Portland, Me., I am second mate of the Chesapeake in the beginning of December. Five or six yeans ago I was employed on board her, and had been for two or three years. She was called the Chesapeake then, and traded from New York to Savannah, Charleston and Baltimore, and Bomctimes to Portland. She had previously been called the Totlon, but when sh* was rebuilt her name was changed. She was owned in New York by H. B. Crom- well. She was iatterly employed in the trade botween New York and Portland. She lay in North River, New York, at Pier 9, on Dec. 4th and 5th, and took in considerable cargo. She had a great deal of wine and cotton, and was nearly full. She 'eft on Saturday 5th, about 4 in the afternoon. She had 22 Passengers. This was not an unusuaiiy large number. She sometimes had 60. or 60, or 70. The crew numbered all told — including the stewardess — 18. I paid no particular attention to the passengers, and the only one I knew was Braine, who l^ad been a p,»ssenger from New York to Portland about a fortnight before, rnd then had a wife and child with him. He then said ho had just come from England. The voyage usually occujiied 30 to 37 hours. On Sunday night at twelve o'clock my •' watch " was over and I went to bed. My room was on deck immediately adjoining the pilot house. I had not been in bed more than an hour and a half when four men came to my door, broke the lower panel, and then opened the door. This awoke mc. The four men then *Tho ordo" put in by Mr. Gray, will bo found in Appendix H. 10 THE CHESAPEAKE CASE. t ■' S I Htootl liolJing pistols over mc — pointed nt me — and bnile mc §ct up omi put on my clJthes. I did po. They then ordered mc to put my hands toiLrciher nnd hold them up, and they put handfufTn or irons on me. Thoy told me when doing this tliut I was a prisimer to the Confederite Slates. I asked ihenj if I could' not sec tlio Captain or bome one lielonging to the vessel. They told mc " I couldn't sec nobody." They then locltcil mc in my room. About ten minutes after I heard a noise as if of a man falling on tlie deck near tlic pilot house door, and I then forced tho door of my room open. The deck was covered with ice nnd I slipped and fell and then two of those other fellows cauglit mo by the ihouldirs and hauL'd mc into the pilot house, where I sat in a corner. About 20 minutes after, Urainc came in nnd said that the second engineer had been killed and thrown overboard. Several of those fellows went in nnd out of tho pilot house while I vvas there. The prisoner Scely, who seemed to be keep- ing watch forward, went in twice to warm himself. A big tall follow, with a long sandy beard, was steering. Neither of tho other prisoners went in. He staid some time thc-e. One of the other fellows an olficer cnmn to nic anti asked mc where the paint was ; I told him in the. i»ain' lockers. 'J'he olficcr then ordered mc to show him where it was, nnd I went i.own and showed him. The oiriecr said they wanted to paint out the steamer'n name, and the yellow streak on the funnel. The officer held a pis^tol in his hand. I .isked him to have the irons removed, but the olliccr refused. They were not taken ofl' until the next morning about 7j o'clock. I was taken to the passenger cabin am! found the mate there wounded in the right leg and left arm. lying on a mattress, and the engineer wounded in the chin, nnd others of the crew and passengers. I asked Brnine to allow me to sit by the mate and attend him. Uraine said he would sec what could bo done, and sometime after told mc I could sit wi'.h the mate nnd I did so and washed his wounds. A man nrmed with u revolver sat by them, nnd another also armed, kept guard at the cabin door. The prisoner M'Xini^ey was at one time on guard nnd was armed. When breakfast was ready they were taken to breakfast. Two men armed with revolvers stood on each side of the breakfast table, and M'Kinney, armed, stood on the stairs outside. I went on deck two or three times during the day, having obtained permission to do so. No guard accompanied me, but armed men kept guard on both sides of the steamer. Collins wa«< one of the men on guard, and held a pistol in his hand. 1 saw Seely clean- ing some brass work on the timber head. I was kept close prisoner all day, nnd pretty well down. At night they were all ordered below, the officers were put in the cabin and the rest of the crew in the forecastle, except the firemen who they kept at work. About six o'clock one of the officers, with a pistol in his hand, came down to the cabin, and ordered mo to go np and show them how the bells from the pilot house to the engine room were worked. I did so, and then asked where all our men were, and the officer told mc they were down in the fore- castle. Next morning they made Grand Manan. Brainc came down to the cabin and ordered me go up and get ready the anchor to let go when they wanted to. This was, I understood, nt the suggestion of the man who belonged to the other passengers, and not to thoso fellows, but who was acting as pilot for them. Braine, with a pistol in his hand, and the other man stood over mc while I pre- pared the anchor. They reached a haritor and the anchor was let go. They then had breakfast. I did not cat much. I was too uneasy, as f did not know what was to become of me. I could not gel any of them to tell me, and I did not know but I miglit have to go over the rail. After breakfast they lowered a boat and Brainc and two or three of his men. as well as I could see through the cabin windows, wtnl ashore. They remained two or three hours, then returned and weighed anchor. Some time after they met a pilot boat. The boat ordered tho steamer to stop, and a man came on board the steamer from the boat, stayed some time, then went back to the boat, and soon arter he and another man came on board the steamer and brought, a valise. I was kept aft on deck at the time and could see what went on, but could not hear w|)at was caid. The man went forwar(|l to tho pilot house, could DAVID COLLINS, ET AL. u ill put on nml liolil loing this d" not arc uliln't SCO or I lioarJ ntl I thrn I Hiippcil ildirs and jinccr had and out of lie kccp- vitli n long: He staid 1 nskcd mc iMi ordrrrd J'lic oiriccr >ak on llie c tho irons xt morning mnto there e rnf^inccr kcd Braino Id sec what n and I did them, and Cinney was were taken le breakfast lock two or No guard r. Collins Jcely clean- ill day, and were put in n who they n his hand, )w the hells and then in the forc- caliin and wanted to. to the other for Ihcm. while I pic- Thcy then f the passenger^!, got a b.)ii.l from a ship and came up to Saint John about 4 o'clock in the morning. I was in bodily fear from the time the vessel was taken from us and our crew until I got out of the pilot boat. I am not in the habit of being afraid under ordinary circumstances. 'J'hc prisoners were on board the steamer when the pilot boat was cast olV, and went off in the steamer ; they had no place to land. Some of the parties got a stage over the stern, for the purpose of paiiiting out the name of tho steamer, and they said afterwards that •hey did so. They made our men paint the yeliov streaks on tho smoke pipe ((lack. The Cheaapcitke carried the Stars and Stripes — the American flag. I never knew of her sailing anywhere except to American ports, end from one American port to another. Tho captain and crew had no control over he or cargo, after she was taken possession of on Monday morning. 'i'he second engineer might possibly get tho apparatus for throwing hot water without help, but 1 doubt if ho could, at all events he could not do it in less thou twenty-five minutes. He would hav; first to go on deck from his engine room, then uncoil the hose from tho hose box and extend it along the deck, then attach it to the goose neck on deck, then take it down to the engine room and put the machinery in motion and after that return on deck to use the hose. Mr. Gray s.iid all this was immaterial, as if a man under such circumstances as would create the impression that he had the neans of throwing hot water immc* diatcly threatened to do so, ihc effect would be precisely the same as if he actually had the means of carrying out such thi-eat. The witness also said I lieard Uraino and (he Chief Engineer disputing as to whether the Second Engineer had fired a pistol shot. — Urnine said he must have fired tho first shot, 'i'he engineer denied that he had fired, and said he would lay any wager that he could then, if Brume would let him make the search, find that pistol (it is presumed the pi>^tol Shaflcr owned) in the Second Engineer's room in his bed. I heard afterwards that it was found. I saw blood on the ])lace where they told me Shaflcr bad fallen. Shafll-r was nearly fix feet high and a stout able man. He was a vnry kind, gentlemanly man, a id very much liked by the whole crew. He was about 45 years of nge, and I often heard him say he was !;orn up North Uiver, in the Stale of New York. 'i'he only names I remember havii.g heard were laose of Braine, Parr, and Collins. All the parly seemed to be acting under Braine's command. Cross-examined by Mr. Gray. — From the time the vessel was taken until I left the pilot boat I was in bodily fear. I have not told more than occurred. A great many things happened that I diil not sec In coming to Saint John by train I did not g«-toul at a way station, for fc-r of coming to Saint John. I came the whole way in the train. VViicn the vessel was seized and they told mc i was a prisoner to the Confederate States, I Lnew whai tluy meant. I did not see the Con- federate flig run up. I do not know that the North has taken many Southern ships : they may have taken some, but I do not know how many. I did not seu the order given to the captain by Braine ; heard something about it. The captain told mc they had given him their names, but did not tell me they had given him n copy of the order. I was not treated with any unkindness, but the engineer was kept on duty after being wounded, and bleeding from the chin. I was allowed to take all my clothes when leaving the vessel, 'i'ho cotton we had on board came from New York. Could not say whether it came from the Southern States or from Europe. Cotton is one of the chief productions of tho Southern States. Have known cotton to come from Europe. No one wus hurt who did not make Ml- tnz inE CHBSAPEAKB CASE. ll ii I any resistance to the capture. Did not hear Oratnc lay that he gave orders to hi* men not to injure any one, unless in case of resiBtnncr. On Monday morning after they had secured possession of the vessel, nil of our men, that 1 could seo wore liberated from the irons. One of Urainc'H men told mc that if I would keep quiet, and not attempt to recapture the vcsrcI, they would take care of me. I believe the passengers got all their luggage. I lost nothing, and am not aware that any of the others lost anything, except whnl the captain spoke of. Kc*examinod. — They told mo they were acting in the name of ihc Confcderato States. The chief engineer was forced to work after being wounded m the chin. I do not know what became of the second engineer's luggage. I did not know he was killed, as I was asleep at the time. Jan'y 8, 1864. tVlDKXCE OF JAMES JOnXSTOJ James Johnston deposri' — was born in Trelond ; have been a resident of the United States 14 years; am not a naturalized citizen of the United States ; follow the business of engineer; know the steamer Chesapeake ; was Chief Engineer of the steamer Chesapeake ; have been Chief Engineer something over a year ; have been on board the steamer Chesapeake three years last July; was on board the Chesapeake on the 4th and f>th December last; this vessel was engaged in carry- ing passengers and freight between New York and Portland ; the eteaiper had something over twenty passengers on board on the 6th December; I had charge of the engine on the Tith ; remained in charge up to 12 o'clock at night ; nothing unusual occurred on Saturday night or on Sunday ; I had charge of the engine ogain on Sunday night until 12 o'clock ; was waked up between 1 and 2 o'clock on Monday morning by the report of pistols ; went from my room on deck and found Mr. Shnfler lying on deck at the engine room door. I knew the steamer 14 years ago ; she wca then called the Chesapeake ; have known her by the name ofthe Tvtlen : she was at one time rebuilt ; she was re- built i:i New York ; she was afterwards called the Chesapeake ; I had known her by th» name of the Chesapeake before that lime ; she is owned by H. B. Cromwell, oi j\. Y ; I raised the second engineer up when 1 found him lying on deck on the Monday morning of the capture ; I called him by na'.nc ; he was dead and lying with his feet down the hatchways ; this wis between 1 and 2 o'clock ; I saw no blood then, it was qu.te dark ; saw two spots on his neck which showed blood ; I then went below to the place from which the second engineer came up ; there I got a pistol put to my head by Collins ; I caught him by the arm, and told him to hold on, tlien a man beside Collins whom I took to be Brooks, shot at me, the ball taking effect in the chin. [Mr. Gray objected to witness answering the question " who shot the second engineer 1" Brooks made a statement, it appears, to the witness with reference to th? shooting of the second engineer, which Mr. Gray objecting, the magistrate would not allow him to tell as not bt ing adn.ispable in evi- dence.] I went across the deck lielow and spoke to Wade. Wade did not answer. I was fired at without a word being said to me. I had the ball taken out of my chin two days ago It was taken out by Dr. Earlc of King's County. The mate Charles Johnston, was shot in the knee and in the arm. He and I went into the kitchen through a little hatch ; we remained there for half an hour. While there I saw Mr. Shafft-r's body going overboard. There were three or fonr persons engaged in throwing it over. Knew none of them except Brainc. The body was thrown over just as it was when lying on deck. 'J'lie cook came to the kitchen. I asked him where Capt. Willett was. He said he was in the Cabin. I also asked him what was going on. Pie said the ship was taken. Robinson, the sailing master, took me to my room to dress, as I had only my night clothes on. I had been asleep and was awakened by the pistol shot. Robinson had no pistol with him that I saw. I heard two or three pistol shots. After dressing I went to the cabin and found the Captain there in irons ; ' Robinson was with him ; the mate was there wounded ; Purr was there taking a shot out of Brook's hand, he then took a shot out o( the mate's arm ; Parr then ' tried to take the shot out of my chin, but could not, as he said it was fast in the ebin ; I do not remember to have seen any of these prisoners present ; I bad somfc DAVID COLLINS, BT AL. 1« ve orders to Joy morning 1 could 8P0 would kwp re of mc. I not aware Confederate atch was not sent. McDonald went ashore here. I saw McDonald a ft;w days ago. he came from Halifax to the Bend with me, I did not request Iiim to come, perhaps he came to see that I got through safely. We remained ofl' Partridge Island in the steamer from three to five hours, a boat went achore, in which were Parker and Braine. I do not know any of the others, or what they went ashore for. They came back to the ship and we started as soon as we could get steam up alter they came aboard. I think Mclvin- ney went ashore with them. Wc did not take in any coal here, we left here about 2 o'clock next morning under steam, we got into Sbclburne in the first place, got there about 9 o'clock on 'J'hursday night. Capt. Parker had cliarge of the vessel on the way to Shelburne, I was not allowed to go ashore, neither was any of thg crew. There were four others of our crew talven away in the vcs?el, their names were Striebeck, (Jonnors, 'J'racy, Murphy. I had charge of (he engine, I slept at little at one time, I slept three hours in the cabin. We had a very heavy gale of wind, also snow on the passage, which commenced on 'J'hursday morning. Wc lay at anchor in the harbour, we lay there all 'I'hursday night. We look in coal and wood there froii a schooner on Thursday night. Parker told me there were ten tons of coal, and two cords of wood. Here we discharged a large quantity of freight, including flour, sugar, tobacco and jiort wine. It was put on board a schooner. I do not know how much wine was put ashore. The wine was put up in quarter pipes. The wine was distributed about the vesrel. I got some. Capt. Parker said that Kenncy, a man living there, had bought a thousand dollars worth of the cargo. Braine came back 'here in the day time. Cannot say on what day. We lay there 4 or .0 days. We were there on Sunday. Do not know on what day we sailed. Braine left the vessel again while there. He took a trunk with him, I heard there was jewelry in it Braine did not come back there again. ■ VKIIV^V i i i f 14 inE CHESAPEAKE CASE. , 7 t ■ .i' Got no additional men or coala nt I.aHave. Wo got some wood. Parr told me thut he was going nwny for a day or Uvo. Ho would return and hring Draino back, when he would endeavor to get tho captain to liberate me, as it was too bail to keep mu confined to the ship, wounded os I wns and away from my family. Parr also said Uraine hnd acted wrong in running olf with a sum of $400. (Mr. (iray ohjectrd to nil c*'idencc as to some statementH made by Parr, and quoted from Roscoe'ii evidence in support of his niijcctionti. The Magistruto rulcJ in his favour.) Witness resumed: — Parr went away. I do not know where. We left that evening. I do not know the date. We got some wood there. Wo left La Have and cnmn to the mouth of the river, towing a schooner of about 50 tons, and loaded with part of the cargo of the Chesapeuke. I cannot say what kind of a load we gave her hs it was nt night, but it wns a pretty good load. I did not hear Parker say what he got for this ; we got some wood from the schooner We remained nt the mouth of iho river and then jirocccded to Sambro, about 20 miles from Halifax. Our coals lasted until we got there. Got no adililionni crew at La Hnve. Capt. Pnrker went from Sambro to Hnlifax for coni, but took no part of the cargo with him. Ho returned with a schooner load of coal, two cngi- necrs, and two firemen. Parr had not returned. We commenced taking in the coal about 2 oVIoc.k in the morning. I got up and spoke to Parker. He told me about the men he had got, and asked me to show the engineers the machinery. I told him I would after daylight. After that I was in my stateroom getting ready to leave, Parker having told me he was done with me, when the pilot (Flinn) re- ported to Parker that there was a gunboat in the harbour. Parker went on deck, and seeing her spoke to his new engineer about getting steam on. (This placo they call Mud ('ove.) The engineer told Parker his men were not in order to get steam on. Parker then told me to scuttle the ship but I told him I did not know huw. Ho said I could cut a pipe, and I said we had no pipes that I could cut. Parker left the cabin then. I carried my clothes on deck, and found him and his crew leaving the vessel and very good time they made. The three prisoners were among them. I then got an American colour out of the wheel house, and one of the firemen to run it up Union down. Th.« gunboat came alongside and boarded us. She was commanded by Lieut. Nichols. There were none on board the (Chesapeake then but myself and mv three firemen, the two new engineers who were left behind, and one oil-man. There was no steam up then. Nichols nsked me who was on board, and I told liim. W^c tried to get up steam, but we had not coal enough, and no oil on board. About an hour and a half after this we left, and proceeded to Hnlifax in com- pany with the Ella and Annie. The Dacotah was behind us. I staid in Halifax until Monday last. Parker, Draino and Parr had charge of the Chesapeake from the time she was captured until they loft her nt Sambro. Capt. Willett and his crew had no control over her. I did not act of my own free will, but under orders from these people. I went to the second engineer's room in company with Parr and Striebeck, and found a pistol there which I handed to Parr. He examined it and said it had not been used. In the second engineer's drawer I found the pistol. The second engineer's room was on the deck above where hn attended the eng'ne, and the same deck on which I found him dead. I hired him about two years ago, and have never known him to carry a pistol. I ivould have known it if he had dope so. There was no means of putting boiling water on deck, noi were there at any time. 'J'herc was a force pump to throw cold water in rr.i>o of fire. I saw these prisoners every day from the timo the vessel was captured until they left her a*. Sambro. They all carried revolvers. I do not know what position Collins occupied. Cross-examined b. Mr. Weldon. — When Brooks got to the cabin '.c was wounded in the left hand. Parr cut the ball out. I heard nothing said about the engineer shooting him. I found the second engineer dead at the top of the gang- way, his duty was below. I went down and saw Drooks, who fiashed a pistol within about two feet of me. The ball struck me in the hollow of the chin ; did not knock any teeth out; but wns bedded in the bone. I had it taken out the day before yesterday from the outside. After being shot, I went into the kitchen through a batch used as a dumb-waiter. This may have been cowardly, but I DAVID COLLINS, ET AL. 15 .c was couKI not lu'Ip it. I rcmninnl thrre about a half on liour. w n I was taken to the rahin, anil Pnrr cut the wound, liut rould not pet thi, shot out. He then tlrcMcd it. and told me to keep the cold out of it. lie took the hull out of the inate'8 nrn:. I did not liear tlie Confederate StateH mentioned at all, nor did I hear liriiine say to any one that thry were aclinir in the name of the ('onfederate States. They u«ed a Seeesh flag in Shelhurne. I cannot describe it ; it did not seem light to me. Cantiot Icll how many colors were in it. I could not descrihe four weeks from now n " rag" that I had neen to d;iy. It was not the StarH and 8lri|ie«<. Parr did not tell me they had taken the Clitunpeahc. for the Confederate States ; hut said that he and liraine had travelled in her nhout a month before, for the purpose of taking her. He ol«o told me he had been in ihe Soutiietn nrmy, and was a releasctl prisoner ; but did not say what part of the Southern States he came from. Itu treated mc very civilly said Pnrkrr had not fulfilled his word, and that ho would try and pet mc away. IMiey did not get any new enpineers at Shcl- burnc ; they woidd have to "make them" there. I was allowed lo go on deck alone occasionally, and took my mealiii in t!ic cabin. When the vessel was first taken, Uraine told mo he hail no engineer, and I worked the vessel to Uraml Mannn. Parker then came on hoard, told mo he would have to keep mo a litllo while, and askeil me how much money I wanted. I said not to miml money, I would run the ship if I had to do it. I suppose Brainc acted under Parker after the hitter came on board. 'I'here was a guard in the engine room in llic fire room and on deck, all the time. Parker said Shelhurne was his native place; did not say he had been in the Southern Slates. I ha«l never seen him before. We jmt into Shelhurne, I^a Have and Sambro, and were about 4 miles inside Sambro and about half a mile from the shore, when the Ella and Annie took us. When Parker and his |).uty left they took one boat wit! them. Wade must have gone on hoard the schooner, as he was found there by some of the crew of the Elhi and Annie. I was left in charge of the Chesapeake. The two Halifax engineers and Wado were the onlj' persons taken on board the Ella and Annie. The Dacntah lay off the harbour, and after speaking her we proceeded to Halifax, having got orders to that effect from licr commander. I was kept only until they got engineers. I did not expect any money nor would I have taken any were it offered. Re-examined by Mr. Wctmore : — The watch in the engine room and fire room were armed ; I don't know whether the watch on deck was armed. Jan'y 11th, 1864. Mr. Wetniore put in evidence: Certified copies of the fol- lowing Acts of Congress : Act of Congress, 1819, cap. 75. Statutes at L arge, 3 vo(. .)14 do 1820, cap. 113. do i.J GOO do 1823, cap. 7, do id 721 do 1833, cap. 72, do id 789 do 182.5, cap. 87, do 4 vol. do 1847, cap. 51, do vol. 171 Also proclamation of President Lincoln, dated April 19th, 18G1. EVIDENCE OF CIIAULKS WATTEHB. Chailes Walters was called and testified as follows: — I reside in Carleton ; have resided there twelve years ; know the prisoners Seely and .McKinney ; had no con- versation with Seely or McKinney on the subject of the capture of tho Chesapeake ,• had heard a good many speak about it in their presence ; I heard their conversation in liower Cove, in the City of Saint John ; McKinney was present ; the two Coxes were present; do not know the names of the streets in Lower Cove; do no know in whose house this conversation took place : after going down Charlotte Street, would turn to the left in order to reach the house in which the conversation took plac« ; it was the next street to the last street which runs east and west ; [procu- ring a plan of the city, the witness pointed out Main street as the one on which the 1« THE CHESAPEAKE OASB. li houHO wiir Bi(iiiite go to New Voik lotiipture ii vckhcI ; w« were nil to hive i shure, do not know how much eaeh man was to receive; did imt hear nn\ thing nhoiit payment for the Bcrvico ; wo were to have our pa^HuBc paid to New York ; Purr was to pay the passage ; the prisoners were present at one ot the meetini?* ; there were two meet- ings ; did not hear anyl>ody suy they would go ; the prinonern were present nt tho Hecond meeting ; lln're were very few ol" tho lioyn present at the first meeting: the Coptain appointed the second meeting ; never saw Collins lieforc to>day. Have hud no conversation with IMcKiiiney ahout the aflair; had no conversation with Heely a))out it; I wie wns captured ; it was asked ut the last meeting liy the captain it' those present would go; I cnnnol say that I hc^rd nny one assent; I was not present ut tho first meeting : I saw the prisoners 8cely and McKinney the same night that the last rr.ecting took place, before tho meeting ; I do not know how niiiny meetings were held ; I had a conversation with McKinney and yeely on the rond to the meeting, when tho prisoners said they would go to the meeting ; the two Coxes nnd a man named Geo. Kobinson were with us; Kobinson asked ihu boys to go; they nsked where they were going to, nnd he stated they would find out wiien they got there ; when I spenk of "they " I mean '.lio iirisoncrs and tho others ; they nsked what they were g< ing for; Robinson snid they were going to see Braine, who was hohl- ing n mooting for the Captain ; couldn't say what was said on tho wny ; Robin- son called at tiie Lawrence Hotel and got Capt. Parker nnd wo nil went to tho place of meeting; I heard some time before the meeting that thi? man wanted to get a crew for the purpose of taking a stepincr ; those who intended to go were to po tho next morning; I was present when the American boat left, and saw McKinne and Scely there ; Secly was brought up in Carleton ; I did not intend to go ; I went to the boat to sec who was going ; of those men who were nt tho meeting I only saw McKinney and Secly ; they were on the upper deck of tho boat ; did not know where they were going; I hid tlie time of day to them; I was there ahout a quarter to 8 o'clock; I left the wharf before the boat left; I heard the steamboat bell ring before I reached the wharf; I was at the head of the wharf when the fastenings were cast oiT; I saw the prisoners about five minutes beforf this. Cross-examined by Mr. Gray. — It wns stated at the meeting by Capt. Parker that they were going on behalf of the Confederate States to take this ves- sel ; I think thnt it was slated at the meeting that this prize was to be divided among tho crew by tiie (Jonlederate Government ; Capt. Parker stated that ho liad n commission from the Confederate Government; the Cuptain produced a pnper which he purported to be a commission from the Confederate Govcrnmrnt ; the paper was read over; I did not hear what the paper contained ; it commenced as near as I can remember " Jefl'erson Da^is, President of the Confederate States of America." [Mr. Gray hero produced a document which lie refused to allow Mr. Wetmorc to see. It was understood, however, that it was the Order of JefTi'ison Davis !o Capt. Parker to go privateering.] I think the intention was expressed at the meeting that the vessel was to bo taken for the Confederate States, or else they would not have gone ; at the time that I heard that Capt. Parker nnd Lieut. Braine wanted a crew, I also heard that they wore ofJicersin the Confederate service ; I heard at tho same time that they wanted to raise this crew for the Con- federate service for tho purjiose of taking this vesiscl ; it was understood that this crow when raised was to be in tho Confedcrato service. I d;d not hear it said that Parr had been an otticcr with Gen. Morgan ; I was not sufficiently close to see tho paper that Cnpt. Parker read, so as to be able to identify it ; I did not sco tho mark upon it ; I was not sufficiently near the paper to sec it so distinctly that if it was novf put into my hands I could identify it ; did not sec Braine there the firsVoigbt i.he wasstyled Lieutenant ; did not remember that (}»ptfdt^ jPaj;kcr (( il DAVID C0LLIK9, ET it. 17 Htated that ho wai Captain of the Privaterr Rrtrihution ; went to Lawrence Hotel for Cnpt. Parker, then wont down to the pluoc of mscting. Ro-exnminetl by Mr. Wetmoio — I tohl yon all you naked inc. The tcb«oI waa to be a Confederate prize. I do not know what share we were to have. I think the iteainer wa« to be brought to Grand M nnan to Innd her paiflrngcm. There ' wai some talk at the meeting ab«ut taking,' the venscl to Nova Scotin. It was talked among the men that the veHscI waa to be taken to Nova 8cotia. The ques- - tion was asked if the vessel was to be taken there. I did not hear it asked, and I did not hear the answer. I did not hear what the vessel was going to Nova ' 8cotia for. The men were to have a share. I do not know what they were to have a share of. I can't say that they were to have a share of the vessel and cargo. I did pot hear when or where the division was to be mode. I did not hear who was to ."nake the division. I heard from Robinson that Parker and Draine were officers In the Confederate service. I did not intend to go with the men. I went to the ni.ictings to see and hear what was going on. It was stated at one of the meetings that the men would be protected. To Mr. Gray — It was stated that the men would be proter 1 by the Confederate > Government. It might have been intended that the vcscc. should go to Nova ' Scotia for coal. Jiin'y 2l8t, 1864. Mr. Wetmoro put in evidence :— Certified copy of coasting license granted to the Steamer ..' " Chesapeake," under certificate of H. Barney, Esq., Col- lector at New York. M '^ Certified copy of certificate of enroUaicnt of the Chesapeake > at Kew York. 4 The evidence for the prosecution closed. V At the close of the evidence for the prosecution, the rdepositions were read over to the prisoners and being asked, with the usual caution, what they had to say, Collins replied as follows : — " I am not guilty of any of the charges ollcged, and in any and every act done by me, in any way connected with the taking and capture of the Chesapeake, I any that net was done under the authority j.nd in the service of the Confederate States of America, Jefferson Davis, President, as I then believed, and now be- lieve. And I utterly deny that I am guilty of either piracy, murder, or robbery on the High Seas, or of any crime or offence whatever, and I positively assert that I never contemplated piracy, murdnr, or robbery, or any other crime or offence, and do not believe I have committed any." (Signed) D. COLLINS. The other two prisoners made and signed similar state- ments. Thursday, 28th Jan'y, 1864. ff The following Witnesses were then called for the defence : BVIDEXCE or JOHN RING. ^' John Ring, I live in Carleton, lived there all my life. I know two of the prisoners, McKinney and Seely. I know Charles Walters. I was present at the meeting •puken of by Watter*, about th« Chesapeake ; Walters was there ; McKinney and 18 TBB CHESAPEAKE CABK. 9«!fly wore there. It waa proposed to ciitnr into the Confcdrrato acrviro nt that ni^clmfl:. r K1W Dr.)iiic there, a man thry cnMotI Ur.iinc. I aaw a man called the Captnin ; did not ace I'arr, I waa at Itoth nicctinRH; anmo man aliowod a paper which tho Captain aaid waa his authority. I would know that paper if I saw it; I know it hy a lir^t' noal not quite at tho corner; a man'a hc.id and shonlderH. There it* another .«oal o:i it, on tlin right hand aide, lojkinf^ like a hlot ; I mindod it whrn the ni:\n read it. I aaw it afterwards in Mr. Uray'a hundfl. JcfVcraon Davis' name was at the liotlom of it. I went up and nu\v what it was ho hod done read, ing. This is the paper which wus produced at the inei-iinit. I swear this is tho ])aprr the man read at the meeting. I made a mistake ahnut tho head and ahoulders of the seal. He had just done reading as I ivent in. This is the identical paper.* Mr. Gray olTors the paper in evidence as part of what took fdacc at the meeting The Magistrate declines tn receive it until it is proved genuine. Crnas-examined. — The seal on the right hand looked like a amall blot. I can- not tay on which aide it was, insiJo or outside. ', EVIOENCB OF JAME8 TRECAIITIN. James Ti'ccartin, I live in Carletou. I was present nt the last meeting. Ring waa there. I think Walters waa there. It was proposed to enter into tho acrvico of the Confederate States. I was introduced to Ca]itjin Parker. I heard n man called Draino was there. I naked the Captain what was his authority, and ho point- ed to a gentleman and said he will shew you my authority, ho produced an envelope. He took a paper out, and I saw the red spot on the hack. Ho then read it out. I saw the large seal afterwards on it. It comraenccd " JeiTerson Davis, President of the Confederate States of America." It was signed on .'he right hand aide "JefTerson Davis." Cross-examined. — It was a round red mark. " JefTerson Davis" was written out in full ; there was nothing after it. I saw the paper once at Mr. Gray's ; do not recollect tho day. I think it was Thursday 7lh inst. in the evening. I gave the description of the paper to Mr. Gray, and then he shewed me tho paper. M'. Gray and Mr. Weldon were there. I swear this is the paper from the mark shown ; tho small rod seal of the paper. It was a red seal. It was a diamond stamp. I could not say whoso name was there. A certified copy of the commission establishing a Court in the Province of New Brunswick, for the trial of Piracy and other offences committed on the high seas, passed at "West- minster the 11th day of April, 1829, by writ of Privy Seal; put in evidence and read. Jan'y 30th, 1864. Certified copies of the letters of the American Consul to Mr. Tilley,t and affidavit accompanying them ; put in and read. EVIDEN'CB OF LUKE P. BLACKnCRS. Dr. Luke P. IMackhurn being sworn, said : I nm a resident of tho Confederate States. Reside in Natchez, Mississippi. I wus appointed Medical Director of the State of Mississippi, in January, ]86:3. I left llie Confederate States on IClh July last. I am a native of the State of Kentucky. Have resided in the South- ern States since March, '46, and have been connected with the ormies since the difHculty between North and South commenced. Am intimately acquainted with Jefferson Davis, President of the Confederate States. Know his handwritiiig . have corresponded with him. Know tho provisional seal of the Confederate States. A new seal and a new flag were adopted in May last. Am acquainted *Seo Appendix 0. tVide Appendix A. Y to 'I'h by ' we nil (>r Fe an brc ( offi Lie toi C fede For and * ser\ '^ SIX A^ serv belo hatt ''^Ski Poir whi< for 1 rode prac ^^ to ai k oxer 1 • ¥ DAVID COLLINS, ET AL. 19 rvirc nt that mil called the (wcd a paprr ir if I saw it ; nd shoiihlcrH. ; I mindod it iViTion Uavift' lul diiiio rciul- [!ur tliis is the nnd (hnuldcrK nticol paper.* t llic meeting [ blot. I can- ccting. Ring Intfltho service I heard n man , nnd ho point- produced an Ho then read cflbrson Davis, 1 on the right i" was written At. Gray's; do ening. I gave ho paper. Mr. c mark shown ; lond stamp. I a Court in iracy and d at West- Privy Seal ; )tli, 1864. Consul to put in and iho Confederate ical Director of States on IGlh d in the South- Tinies since the acquainted with handwritiiig : he Confederate Am acquainted i with Mr. Benjamin, wlio in October, 'fi'J, was Secretary of State. The Provisional (lovrrnmont wiiK I'KtablihliPil III April '01. Mr. iienjnniin acted as Secretary of war for only a Hliort period ; be Ik now Allorney (Jciicrnl. [Mr. (3rny here placed in tho witness's biind (':ipt. ParluT's authority,* and iiMked hiin to identify llie Nignalurcs nnd seal.] WitncMS : The signiiturp in that of .lefltTHOii Davis, nnd the Seal is that of the Confederacy. I think that is the signature of Mr. Denjomin. The poat of (lovrrmnriil wnx rrnjoved to Wichmond in the full of 1861. A very tor* riblo war is now going oii bciwecn ilie tlnited Htatt^s and the ('onfrdcrate States. Prisoners are excbanged. VVe arc recognized as belligeri nts ; sometimes this rule is infringed by tlio iSortb. I have just arrived from Montreal, lieft that City last Saturday. Charleston, South Carolina, is in the Confederate States, nnd is likely to remain so. Confederate (Government issue Letters of Marque ond have vessels of '.vnr too. They issued letter* of Manjue in 1862. The South has a small navy but a very enicient one. I know the South has a vessel of war called the Alabama. In 1802, the States composing the Confederacy were : Texas, Louisiana, Arkansas, Missouri, Kentucky, 'rcnnesKee, Mississippi, Alabama, Florida, Ueorgia, South Carolina, North Carolina, and Virginia. gvioe.nc'e: or alonzo g. coleman. Alonzo G. Coleman sworn : I am a resident of the Confederate States. Waa born nnd brought up there. Am a native af Alabama. Previous to the war my f.)thcr had largo estates in Alabama. Have been in the Confederate service since May, 1862. My rank is that of a private. [There wis an objection raised to Mr. Gray asking witness whether according to the practice of Confederate service, officers commissioned for any particular duly have not lower to delegate authority and appoint others under them to .lid in carrying nut that duly 1 The magistrate nliowed the answer to be given.] I have known a Captain to delegate authority to subordinates under him to do a particular act. I have known it to bo done. They have authority to do this. Though a private I have myself been appointed by my Captain to act as Liei;tcnant to do a particular duty. The acts spoken of were recognized by our commanding oflicers. I know of such acts being n recog< nizcd part of our service. I mean by commanding officers, not Captains but Generals in command. In cases of parties so acting being taken piisoncrs by the Federal authorities, they arc regarded as prisoners of war. The Southern porta are looked upon as blockaded. I knew nothing of the Chesapeake matter until brought here. Cross-examined by Mr. Tuck : I was not an officer, but was regarded as an officer when placed in command of a party. I only received Private's pay. If a Lieutenant places a Private in command of a party to act for him, he as privileged to act as Lieutenant commanding. EVIDENCE or CAfTi THOMAS HBRntHT DAVlS. Capt. Thos. Herbert Davis, sworn. I am a native of Virginia. Am in Con> V federate service. Am a Captain. I went into the service in South Carolina at ; Fort Moultrie, when the " Star of the West " come up. I went in as a Private, ; nnd have gone up through all the grades to a Captain. Have been in active i service. Have been with Lee's army. Have been with it until within the last ; six months, during which time I was n prisoner nt Johnson's Island. Have ' served unilcr Johnson, Beauregard and Lee. My division General is Picket. I belong to Longsirecl's corps. 1 have been in every battle except the seven doy'a battle at Richmoiul, and the batllo of Chanccllorsville. I was wounded at Seven Points. Was taken prisoner at Gettysburg, nnd sent to Johnson's Island, from which place I escaped on New-Year's night. That was the coldest night I felt for 12 years. I rode 15 miles, and walked some 120. I borrowed the horses I rode, or rather I took them while the fermers were asleep. According to the practice of our service, officers commissioned to do a paiticular duly have power to authorize nnd appoint others to do that duty, or aid in carrying it out ; I have exercised it myself. Such acts have always been recognized by my General OfiS. y^ *Vido Appendix G. T sa lUM OOBSAPIAKM OABU* f er, and I luppoM by th« Oavernmtnt ; to my knowledira no objection wm ■▼«! made. It ia nu iiuvnl thing lor thoao appnintmeuta to be made. When the per* aona ao appointed to act have l>een tukon priaonera by the Fedrral authoriliea, they have been regarded aa priaenera of war. I waa ao treated myaclf. My Field Omcor Olid two ranking (/iiptnina were ahot at Oettyaburg. Alter that until wounded I coinmandod tho Koginicnt. I waa then unable to get ofTtho field, and waa taken aa a priaoner of war by the Vankoea, and tronaferrod to Johnaon'a laland. A pcraoit appointed b}' a Captain to do a particular duty, if taken, ia rn> gardcd aa a priaoner of wur. I bolievo thia to bo the recognized rule uf the acrvice. Did not know rolcnck, Collector at Charloaton. Croaa-cxamined by Mr. Wetinoru : If I wanted a poraon to do h particular duty, and wua deficient in ofliccra, I ahould nppoint aotno peraon of leaa rank for the time being ; he would hold tho higher rank in the diacharge of that particular duty. In our volunteer acrvicu, olliccra and men frequently meaa together. I don t know that in any oxchiingo of priaoncra, a Private ia given for an Officer. I know, however, ihut the Fedorala hold four hundred peraona at Johnaon'a laland, who prior to tho new organization of tho reginienta held coniiniaitiona, but after- warda, having been voted out, occupied the position of private citizena, with a view to their exchange for officera. I could make an orderly Sergt. a Capt. to do a particular duty in event of there being no Lieut. The peraon appointed to dia* charge a particular duty in this way would be respected and obeyed by the men. These appointmcnta are not ofTicially notified to the CSeneral in command, except by the regular morning'a reporta. If a General came along and heard of the ap- pointment of a aubaltern in the manner deacribed, he would recognize it. Never heard of Uraine except in connection with the Chesapeake oflair. Don't recollect that name among the army oflTicera. There are so many oIHcera in tho aervice that it ia impoaaible to remember the namea of them all. IVIDKNCK or K. TOM OSBOnNE. Ephraim Tom Oaborno, sworn : — I belong to Kentucky. Am in the Confeder* ate aervice. Have been serving with Gen. John H. Morgan since ho waa a Cap- tain. Tho Yankeea call him a guerilla. Have been in active service two years. Was on detached aervice the rcat of the time. Was taken priaoner on the 19th July last. Escaped from Camp Douglas on the 2nd Dec. last. Gen. Morgan escaped from Columbus, Ohio, previously. According to the practice of our service, officers commissioned to a particular post, or to do a particular duty, have power to delegate their authority to others ; I have known it to be the case. One year ago this winter I saw itdone almost every day. The uports of such appoint- ments are made to the Colonel and from them to his superior, and so on until it. goes to head quarters. [Mr. Wctmoro here obuerved that these reports were most likely going on yet, to which the witness observed they might stop when they reached Richmond. The quiet yet cutting way in which this retort was given caused some merriment in Court.] When persons so appointed have been taken prisoners they have been treated as prisoners of war. I arrived here this morning. All of our party arrived this morning. I have seen some account of tho Chesapeake affiiir in the papers. EVIDENCE or EBEN LOCKE. Eben Locke, sworn : — AmaNovaScotian. Am a sea-furlng man. Am a Captain' Shclburne, N. 8., is my native place. Have a brother called Vernon O.Locke* ivho goes by the name of Capt. Parker. He left Nova Scotia, about twenty yeara ogo when a boy. He has been living in the States ever since. Believe his family live in Fayetteville, N. C. I have been in Wilmington. N. C. Was in Nassau this summer. Saw there a Confederate vessel called the Retribution. She was called a privateer. She had the Confederate flag flying. Saw there my brother in com- mand of the Retribution, passing under the name of Capt. John Parker, He was received and recognized as Captain. He showed me his commission. I asked him to do so. I asked him either for his Commission or letters of Marque. The paper pir.ced in my hand ia the one he showed me at that time. It is in the same state now as it was then. I remember the writing on the back distinctly. My brother wa« on board of my vessel at Nassau. Had not seen bim for 20 years. DAVID COLLINS, BT AL, 21 I th« per* iithoritiM, My Field that until field, and Johnnon'a ken, IB rn- hc icrvice. pitrticular u rank for particular |retlier. I )a Officer, n'a Island, but after- ina, with a Jopt. to do tied to dia- r the men. ind, except of iho ap* it. Never I't recollect the aervice ) Confeder* nraa a Cap- two yeare. m the 19th en. Morgan tice of our duty, have case. One ch appoint- on until it were moat when they wa» given }ccn taken lis morning. Chesapeake 1 a Captain' G. Locke' ^enty yeara his family Hassan this jran called a ther in com- He waa pn. I asked rque. The in the same inctly. My sr 20 years. 'e !r< Inconsequence of what I heard at Nassau, I found that Capt. Parker wna my brother. Next sow him at Nambro, N. M. He was then in command of the Chesapeake. He was the same Capt. Parker, my brother, whom I aaw at Ntssau. I saw this same commission in his own hand in Halifax. How it got into your hands I don't know. Cross-rxamined by Mr. Turk : — I read purt of the nnper. Kead enough of it lo know thnt that is the snnio paper. Don't know why my brother changed his name. Don't know that my brother sai'rd out of Boston. Know that he sailed out of Now York, and out of (Japo (Jod. Don't know how long ninco he sailed out. Never saw the Chriapeake. 1 went down from Huiirnx to Sambro ; half an hour before I arrived she had left. Never changed my name. Stayed two hours at 8ambro. My brother n-maincd till I went tu Halifax. (Jot a carriage and brought my brother there ; then went home, 60 milea east of Halifax. Don't know whcid my brother now is. Don't kn >w anything about liraino or Parr. Have not heard of Parker since Ir'.ving Halifax. Got none of the cargo at Sambro, nor did any of my family. Did not see nny of the cargo belonging to the ChetaptaJte. My brother did not tull ma of selling parts of the cargo all along the shore. Re-examined by Mr. Gray : — My brother is a Nova Hcotian by birth. He told me his family was at Fayrtteville. Homo questions put by the learned Counsel as to the conversation hu had with his brother were objected to. The Queen's Proclamation of the 18th May, 1861, as to the observance of neutrality pending the hostilities between tho United States and the Confederate States of America, was put in evidence by Mr. Gray. Feb'y 10th, 1864. John Driscoll, being acquainted with Capt. Parker's hand writing, proves the signature to order to Braine,* and also to commission to Collins.f W. C. Watson produced the register of the Kate Ilale, a Confederate vessel, registered in Charleston, South Carolina, and by comparson proves the hand writing of * W. F. Colcock,' Collector of Charleston, to the endorsement on the letters of marque.J The evidence for the defence here closed, FeVy 15, 1864. Mr. Gray moved for the discharge of the prisoners, on a variety of grounds ; but as they appear in the argument before His Hon. Mr. Justice Ritchie, together with the authorities cited in support of them, they are omitted, except the fol- lowing authorities which were not cited by the Counsel before the Judge. 3 Wheaton, 76. 10 Wheaton,306. L'Aimiable, 6. Wheaton, I. Brown va U. S. 8 Cranch, 133. "The Hiawatha" Appendix to Wheaton, Int. Law, (Lawrence) 16 24. U. 8. vs Klintock. 6 Wheaton, 163. U. S. vs Smith, Id. 1&4. The " Mariana Flora," 11 Wheaton The ApoUon, C Curtis, (Condensed Rep.) 98. The " Divina Postora," 4 Wheaton, 58. «' L. Invincible" 1 Wheat. 238. The "Savannah" crew tried in Philadelphia, in 1861. The "Saladin," before Court in Halifax, in 1843. •yide Appendix H. tVido Appendix J, JVlde Appendix 0, inm 22 THE CHSSAPEAKE CASE. it After hearing Mr. Gray and Mr. Woldon, in support of these objections, and Mr. Wetmore, on the other side, the Police Magistrate adjourned to Feb'y 24th, 1864. When His Worship gave the following judgment : ,, ..j,..,, ' After recapitulating the evidence he proceeded as follows : In giving judgment in the case, I shall first consider the cfTi'ct of the cvidor.ca ivcn o arpus nor the Imperial Statute referred to, but un:ler an act giving nie like powers upon an order issued under the act as in a proceeding upon habeas corpus. I have no doubt this is a j.)roceeding which peculiarly calls for the interposition of the highest tribunals of the land. It is the duty of Her Majesty's eJustices to see that the liberty of Her subjects is preserved. If the court will interfere in the case of persons committed for trial in this Country, a fortiori the court will interfere where the parties are to be sent abroad. The only English case I am aware of under the extradition Statutes is one whicli arose under that passed t»") carry out the Ti'caty with France, (In re Besset, 6 Q. B. 481) where the court held that their powere, being statutory, were to have a strict construction. I cannot doubt I have power to revicAv the proceedings before the Magistrate, and I if there was no ground for those proceedings, or the Magis- trate has fallen into any error, either in form or substance, and I should be of opinion the parties are illegally imprison- ed, to discharge them. I think I should be failing in one of the most important of my duties did I not order not onlj'- |the warrant, but also, as an affidavit has been made before (me that the evidence did not warrant the conclusion the I Magistrate arrived at, the depositions and proceedings before [him to be brought up ; and I consider it my duty, in the words of the act to "examine into and decide upon the le- gality of the Imprisonment," and, the return being questioned " to require such verification " as I may deem necessary, and, to enable me so to examine and decide. I think I ought to " direct the further returns " asked for to be made. 4 THS OHESAPEAKR CASE. m Iter U The depositions being then handed in by Mr. Gilbert, and being read, including the charge contained in the heading of the depositions,* the case was then fully argued before the learned Judge, on Saturday the 27th February, and the fol- lowing Monday, Tuesday, and Wednesday. Gray, Q. C, and C. W. Weldon, for the prisoners. The proceedings have take n place under the Imperial Act 6 & 7, V. c. 76, (2 R. S. 420,1 passed to give effect to the Ashburton Treaty. Tlie treaty is entitled " A treaty to settle and define the boundaries etc. — and for the giving up of criminal fugitives from justice in certain cases," and the 10th Article provides for the extradition of persons charged with the commission of the crimes specified, within the jurisdiction of either country, and seeking an nsylum, or being found within the territories of the other. But the treaty could give no power in itself to any officers in this Province, to act in such cases. Their powers must come from the statute and from it alone. And since a man who has committed no crime in the Country where lie is, is entitled to his freedom, and a man who has committed a crime against the Laws of that Country, is entitled to be tried by its Courts ; a statute such a this, being in derogation of these Common Law rights, must be construed strictl;^ (In re Besset 6 Q. B. 485.) The statute pro- vides (s. 1) that if requisition shall be made " bi/ the authority of the said United States," for the delivery of any person '' charged'' with an offence committed " within the jurisdiction of the United States," and found within the territories of Her Majesty ; the Lieutenant Governor shall signify that such requisition has been so made, and require "all Justices of the Peace and other Magistrates, and officers of Justice within their several jurisdictions,'' to aid in apprehending the persons so accused ; and that thereupon " any Justice of the Peace or other jjersov having power to commit for trial, persons accused of crimes against the Laws of that part of Her Majesty's Do- minions in which such supposed offender may be found ;" may examine into the charge and commit the accused person to gaol until delivered up, pursuant to the requisition. Under the provision of this statute, a warrant of commit- ment should shew upon its face. (1) That a requisition had been made by the authority of the United States. • (2.) That the offence was committed within the jurisdic- ' ■-::•.- -'-■-' <^oc Appendix I, "■ "T' >"'?;• ^^9, . -■? • - t DAVID COLLINS, ET AL. 27 tion of the United Statoa, and that must be their exdusive or terrritorial jurisdiction. i ;. , .. . ; ; , ', , (3.) That the committing Magistrate had jurisdiction over the charge, .^i, v-: , , , .i ; ;, . < ' u. . ;; • (4.) That the evidence taken before tlie Magistrate, was such as according to the laws of tliis Province, would justify the apprehension and committal of the persons accused if the crime liad been commHted in this Province, and upon such finding the warrant, should order the committal. ;. : .; But the warrint of commitment in this case is defective in the following particulars. (1.) It does not state that the evidence before the Magis- trate, was such as would have been sufficient to justify an apprehension and committal for trial in this Provmce, and thereupon under the committal. (2.) It does not allege the offence charged was committed in the United States, or within its jurisdiction. It simply alleges that Cape Cod is in the United States. - • .v (8.) It shews the offence to have been committed en the high seas, 20 miles oft' Cape Cod, and beyond the territorial jurisdiction of the United States, and directs the prisoners to be detained " until delivered up pursuant to the requisition etc." "Whereas for an offence committed on the high seas, per se the Prisoners are justiciable in the Couiiis here, and can- not be delivered up or discharged otherwise than by duo course of law here. (4.) It shews on its face that the Magistrate who commit- ted, was acting simply as a Justice of the Peace, and not as a commissioner or officer under the Imperial Statutes for the trial of crimes and offences committed on the high seas, and the commission for that purpose in force in this Province and therefore it shews that the case was without hia jurisdiction, and does not come within the Imperial Act to give effect to the Treaty. (5). It does not allege or shew that any complaint or pro- ceeding had been taken or was pending in the foreign state or that the foreign state had made any application for the rendition of the prisoners under the Treaty, or that the application was made by the authority of the United States. (6). It should not only shew that the offence charged was committed within the jurisdiction of the United States, but should go further and negative any co-ordinate jurisdiction which co-ordinate jurisdiction must be inferred from tjtie al- . legation of the piracy being committed on the high seas. • "• 28 THB CHESAPBAKB OASS. Ml if fit ;ti ii! And two minor objections are — . . (7). There is no allegation that the evidence was taken in the presence or hearing of the prisoners. (8). There is no allegationthat the place where the evidence was taken was within the City and County of Saint John. The warrant does not set forth the grounds of the commit- ment. A mere averment that it was issued " upon due proof as by the statute required" is insufficient. Nash's case 4 B, and Aid. 295. And so of the averment in the present case " upon the evidence before me taken on oath." And the form of warrant given in In re Kane's 14, Howard, 77, and the terms of the Canadian Act (consol. Stats. Canada c. 89,) passed to give effect to the extradition Treaty are to the same effect. It is perfectly consistent with the terms of the warrant in this case that there was no evidence sufficient to justify the com- mitment by the laws of this Province. A particular kind of evidence is required by the statute. And where a person is committed on a special authority, the commitment must be special and follow the authority. Here there is nothing to shew the nature of the evidence or that there was any sufficient evidence at all. Ex parte Anderson Jurist, March 16, 1861, Ed. portion p. 110. The warrant shews no proper jurisdiction of the United States over the offence. It alleges the parties were charged with having " on the high seas 20 miles N. N. E. of Cape Cod in the United States of America, with force and arms," &c. And the jurisdiction is sought to be inferred from the Chesapeake being a registered United States vessel, owned by a U. S. citizen. And even then there is nothing in the war- rant to shew Capt. Willet was legally in charge of the vessel. Nor can the exclusive jurisdiction be inferred from the Chesa- peake being a United States vessel. The jurisdiction of every nation extends " to the punishment of piracy and other offences against the law of nations, by whomsoever and where- soever committed." Lawrence's, Wheaton's, Intl. law 2d Ed. p. 231. A pirate is of no country and liable to be tried wherever he may be found, and wherever he may be arrested that country takes jurisdictio'i of his crime. U. S. v Palmer, 4 Curtis, 314, In re. Kane, 14 Howard, 77. '■ ' >*" ' The warrant should show on its face, that the Magistrate had jurisdiction. Kite and Lane's case 1 B. and C. 101 In re Peerless 1 Q. B., 143. Ordinary Justices of the Peace have no jurisdiction over piracy. The imperial Act refers to this when it says it shall be lawful for the Lt. Governor to require " all Justices of the Peace and other Magistrates ana officers of justice within their several jurisdicUcms'\io aid in appre- • • » David collins, bt al. 9» taken in evidence John. commit- iue proof ase 4 B. sent case the form the terms passed to no effect, nt in this the com- kind of person is b must be Dthin^ to sufficient 16, 1861, e United i charged of Cape id arms," from the owned by I the war- be vessel. ;he Chesa- miction of and other nd where- I. law 2d be tried e arrested V Palmer, klagistrate 101 In re he Peace !t refers to )vernor to strates ana 1 in appre- % bending persons charged, and further that it shall be lawful " for any Justice of tlio Peace or other persons having power to commit for trial," to examine into the truth of the charge alleged. The only authority in this Province to try charges of piracy is under the Imperial Statutes 28 Hen. 8 c 15 and 11 ana 12 W. 3 c 7, and under those statutes a commission has been issued and is in force. And the commission only ex- tends to the persons named in it and not to all Magistrates within the Province. Special Statutes have given justices power to act in England 7 Bac Abr p. 446. Title Piracy 7, Geo. 4 c 38 ; but there is no such authority to Justices here. Justices of the Peace as such have no jurisdiction on the high seas. By the terms of tlieir appointment in this Province their jurisdiction is confined to the County for which they are appointed. The Governor's warrant could give no juris- diction. The Canadian statute specially authorizes Justices of the Peace to act in such cases, but the Imperial Statutes does not, but limits the action of the respective officers " within their several jurisdictions." , • The Lieutenant Governor is bound to pursue tbe terms of the act and until a proper requisition is made he cannot issue a legal warrant. But the requisitions of the United States Consul in the present case as shown in the recital in the warrant of commitment are not sufficient. They do not even assert the application to be made "by the authoritv" but only "on behalf" of the United States terms entirely different since an application may be made on behalf of another with- out his knowledge, and such an application would fix him with no liability. It may be adopted or repudiated as the party principal chooses. Nor does it appear that the right to make such requisitions is vested in the American Consul virtuie officio — nor is any direct authority or instructions to him, or any subsequent ratification of his actions shown — nor if shown, could it cure the defect. .,, ., ^ , , , ,t .,. . . j ,, The warrant states the parties were brought np " to answer the complaint of Isaac Willett of the State of New York," and not a complaint made by authority of the United Statea. That complaint of Willett's was made in this Province, and not in the United States It was made before a magistrate who had no jurisdiction in cases of piracy. If he had power to take such a complaint where was the use of the Lieut. Governor's warrant at all. The whole proceedings were coram non judice. *" ' ' V ' ' ' '■ ' ' ' ' *' '«^'' '»v' The requisition should be made by the executive authority. Opinions of the U. S. Attorney General cited in Wheaton'a Int. Law, pp. 241, 2. — Notes — ^lu re. Kane, 14, Howard, 77, and r^ 30 TUB 01IE8APBAKK CASE. ijil the terms of the Canadian Statutes are to the same effect. The IJ. 8. Consul's rec^uisitions refer to no such authority. It is consistent with their terms that he merely applied to have the parties tried here. Nor does it appear that the parties had been legally "charged" in the United States as required by the terms of the statute. The requisitions merely say the parties were "believed to be guilty." The second section of the Imperial Act refers to " the depositions upon which the original warrant was granted," shewing that their exis- tence is necessary. And in re Kane, 14, Howard, 77, and Me- t2ger's case, 1 Parker, C. 188, are to the same effect. Here even if the prisoners were taken to the boundaiy line, for all that appeal's on the warrant of commitment, there would be no one authorised on the part of the United States to receive them — no warrant issued there on which they could be de- tained. This proceeding though on its face a mere commitment for trial is a quasi conviction, since the Magistrate commits the parties to be handed over to another jurisdiction and de- prived of rights they would here enjoy, and the warrant should therefore be construed with the utmost strictness. But leaving the questions as to the validity of the war- rant, and taking up the facts which appeared in evidence, the prisoners are entitled to their discharge on the foMowing grounds: — . First. The offence charged is Piracy on the High Seas. It is therefore cognizable by the proper tribunals of the Country, and the parties committed do not come within the Extradition Treaty with the United States : — (1). The jurisdiction which a nation has over its public and private vessels on the high seas, is exclusive only so far as respects offences against its own municipal laws. Piracy and murder on the high seas are punishable by the Law of Nations wherever the criminal may be found, and no Coun- try has exclusive jurisdiction of such offences. - ,. ^ ,Tv (2). No Country can make that Piracy which is not Piiacy by tne Law of Nations, in order to give jurisdiction to its own courts over such offences. (8). The Extradition Treaty between the United States and Great Britain, contemplates only a demand and delivery in cases where the crime committed falls exclusivel}'^ within the jurisdiction of the Country demanding, and is not applicable where a co-ordinate jurisdiction to try and punish for the crime committed exists in the Country where the person demanded is found. Therefore, if the taking of the "Chesa- 'hi:: iiiii DAVID COLLIMfl, MX AL. 81 le effect. )rity. It to have I parties required 1 say the section n which leir exis- and Me- t. Here e, for all vrould be 3 receive d be de- mitnient commits I and de- warrant :ness. the war- jvidence, blowing Seas. It Country, tradition 10 iblic and far as Piracy Law of 10 Coun- )t Piiacy on to its peako " be Piracy under the Law of Nutions, the tribunals of this Country can take cogniznnec ot'tlie crime, and the party cliurged can neitluT bo deinunded nor legally given up. Second. Under tlie relative ponitions which the United States and the Confederate States bear to each other — both having been recognized as belligerents by Her Majesty's Government — the offence is not Piracy at all ; the parties committed are in no way pnnishablo, and cannot be surren- dered : — (1). It is not Piraciy, because open war exists between the revolted Country of the Confederate States and the United States, and in such case the Law of Nations does not regard . acts of aggression done by tlie Subjects of the revolted Country against the persons, property or commerce of the parent Country as piracy or murder, and the same immunitv IS extended to all who aid or are actir.g with tliem bona fiar in the act committod. (2), The circumstances of the case shew conclusively that the parties seizing and taking the " Chesapeake, " in so d, • . • (7.) Tlie Courts of u Neutral Government which recog- nises tho existence of a civil war in another Country, cannot consider as criminal those acts of hostility which war autho- rises, and which the new Government may direct against its enemies. ; < • ■ !< - •'.. . ■ . ,: -,■,( Third. The Court of a Justice of the Peace bus no juris- diction in luises like the present, and a Justice of tho Peace as such, has no power either to investigate or commit : (I.) A Justice of the Peace has no jurisdiction or autho- rity to issue a warrant or hold an investigation, axyd the Governor can give no such authority. (2.) The warrant issued in this Province, must be based \ipon preliminary proceedings, bad before a competent tri- bunal m the Pnited States, having jurisdiction of the oiFence, and showing that the criminal acts charged were committed within the territorial jurisdiction of the United States, which proceedings must be forwarded to the Governor of this Pro- vince, before the Governor can issue his warrant, in order to give any tribunal or authorit}- in tlua Province, jurisdiction to enquire into the offence. (3.) On the face of the warrant to apprehend the prisoners, it discloses no requisition made by the proper authorities of the United States, by its authority, as required by the treaty, and is therefore invalid. , (4.) It does not shew that in the United States any com- plaint has been lodged, or proceeding taken against the part- ies charged, on which the proceedings in this Province can be based, and is therefore on that account invalid. (5.) The warrant to apprelieud the prisoners, if? defective in combining two crimes which aro triable before separate a^cj distinct tribunals. ■•iii. DAVID C0LLIN8, El AL. 88 (6,) The nutliority to a Mu^lstralo to net, is limitod to HUch crimoH as oould be coimuittea In Lliat part of the kingdom in whicli tlio MagJHtrate iVHidoil : and as tlio high Hcan aro not a part ot'llor Majesty'H Dominium*, a JuHtice of tlic Peace, in the ahrtonce of any 8peeili<; logishUion tlierenpon, has no jurisdiction or power to act in any matter relating to piracy ; the tixami nation and warrant in such cases must 1)C before one of the oHicers comi)osing the mixed Court for the trial of piracy and oftences on tlie liigh seas, constituted by ilie Im- perial Act. -,..-,; Fourth. Thiscx[icditi()n, starting in a neutral territory, how- ever gross a violation of that neutrality, does not attoct the status of parties engaged in that expedition, (/notnl the other belligerents, but only is illegal as regards the neutral Country whose laws have boon violated. Fifth. The evidence shewing that these prisoners wore enlisted in the cause of the Confederate service, under a genuine commission of that State, this neutral Court cannot ciiijuirc into the validity of that enlistment, except for offences against its own laws. It has ])ecn urged that the Chesapeake being an United States ship, her deck should for all purposes be considered a portion of the United States territory. The Police Magis- trate in part based his decision upon this. But the authorities cited ( Wheaton's Int. Law, p. 208, Vattel, Laws of Nations, Book 1, c 19, Sec. 216, and Book 2, c 7, Sec. 8,) do not bear out the conchision. The jurisdiction of a nation in sucli case is exclusive only so far as respects offences against its own municipal laws, (Wheaton's Int. Law pp. 735, 208, 9, 256, Dictum of Cockburii, C. J., Ticgina v Ileane, Times of Feb. 1st, 1864.) The offence charged in the present case is Piracy on the high seas, tiiero is no allegation in the warrants of any violation of tlie municipal laws of the United States. But Piracy by the Law of Nations, was never contemplated by the Extradition Treaty or statute. It only contemplates piracy by municipal law, (Wheaton's Int. Law, p. 240, n 1.) It could never have been intended to deprive either of the contracting parties of a jurisdiction it alreadv possessed ; the reason of the treaty and statute is plainly that escaping prisoners not punishable by the laws of one Country, should be delivered up to the other, and if this crime can be punished here, that reason is at an end. If the word piracy in the statute is to have a general meaning, France might claim the jurisdiction as well as the United States. There is no neces- sity for the treaty as regards Piracy on the high seas. A party commiting such an offence is to l>e tried within the «i» v irt.*i» HA 84 fUV OnBBAPEAKK UAHB. jurisdiction where lie is found, (In re Kane, 20 CurliH, 93 ) And tiio United Stiitew Statutes as put in evidence, riKjuiro that niratoa shouM bo tried in the first district in which tliey aro taken or found, and give jurisdiolion to that district (>ourt alone, {il U. y. Statutes at hirge, p, r>14.) And no legishition on their part, could make an offence on the hii^h Hcan j)iracy, HO as to give their Courts excluHivo jurisdiction, (if. 8. v Palmer, 4 Curtis 814. The Antelope, 10 Wheaton 344.) Their jurisdiction not hcini;; exclusive, in giving ui> parties triable here, we should Htultify ourselves. The right to ivy the offeiice attaches in the United States only on the parties being found there ; the Statute only contemplates the ren- dition of fuf/ilU'en escaping from justico ir another country, which tliese arc not. The acts of the captors of the *' Cliesapeake" subHeciuent to the vessels capture, cannot render tlusir act piracy. Bellige- rents have no rights; their vessels aiul goods when coptiircd by an enemy, may be disposed of as lie pleases. Whoaton's Int. Law, pp. «)2!>, 050, «6S), 18 Howard 515. The treaty did not coutcmi)late civil war. In the present case, the parties claimed to (>apture veescls for the Confede- rate States. They had the colour of a Commission. If a bona fide commission it was sufficient to [irotect them. A belligerent may enlist men in a neutral country; though, amenable to its muuii'ipal laws for doing so. The offence is only cognizable by the neutral state. An officer may bo shewn by his acts as well as by his Commission. Ilere Parker was recognised in the liritish harbor of Nassau, as having a letter of manpic. A person having a letter of marque implies liis having men. and he has a right to send Ins ofiicers and men out to act on separate expeditions. Tho evidence shews a bona fide enlistment in the Confederate ser- vice. A person may obtain the rights of a citizen of a foreign country without naturalization. Marryat v Wilson, 1 B. & P. 444. The Santis.sima Trinid,..', 7 AVheaton, 288. In this caso Captain Parker liad be .i /or 20 years a resident in tho Southern States. Any privn o citizen of a belligerent, has a right to destroy the enemy's proi)crty wherever found. A commmissioii from the belligerent government is unneces- sary. Kents Corns, v 1. pp. 106, 7, 8, Wheatons Int. Law, pp. 252, G27. The only effect of the want of a commis- sion, is that a prize goes to the government and not to the captor. As between belligerents, any man fighting on one side is the enemy of the other. But the genuineness of the commission in the present case is undoubted. The right of Captain Parker to hold it, is alone questioned. But a com- inission does not follow the ship. It goes to the Commanden DAVID OOLLINfl, BT AL. 86 Thoro \H no uvulcnco of Viuy legal prococdingb before any United States tiihiinul. No narraut ajtpoarH to have ifinucd in tlu' di'inantliii^ roimtry us was tlic caM' in ox parto JicBSCt, Q. D. tH|, and In n« Kaiu', 20 C'lirtis 114. Nor can tlio annlicii- tiorv be nindo by iho Consul rhintc oj^iii. In the United States tlio nocesHily for tlic prior action of the Executive is done an-ay with by their SlatiiU*, but here it is othonviHO. And till! C-onsurs ;ip[ilieation was oidy suiiported by ti depo- sition not elearly charging piracy and sworn before a ningis- trnto wlio in a case of piracty had no autliority to tuko depositions at all. TIk; proceedings must be construed strkli- ssi)ni.jun\s and the warrant etc., cannot be corrected by tho depositions. Kx parte JJesset Q. Ji. 481, Ohristior Unwin, 11 Ad. and K. 873. An expedition organized in a neutral country is only ille- gal 80 far as the neutral country is concerned. The legiti- macy of the use of mercenary troops has always boon recognized. A familiar instance is that of Sir DeLacy Evans, and the Spanish contingent. Tho only party to complain is the neutral whoso territory or subjects are employed. Tho evidence shows clearly an enlistment. However gross on infraction of neutrality, tnat enlistment is only punishable by our own laws. The United States cannot complain. Ilad Parker been at Nassau without authority he would have been taken and punished. Ilia commission was duly trans- ferred from Power the Retribution's first Captain. The wit- ness Colcock's signature being official must, be presumed correct. Tho commission was shewn by Parker as his authority, and the men enlisted under him in tho service of the Confedorato States, for the purpose of waging war against tho United States. [KiTCiiiE J. Assuming as you must do at this stage of your argument, tho correctness of the proceedings against the pnsonors, and tho magistrate's Jurisdiction of the ottence ; do not those questions fall within tho province of the Superior Court on tho trial of tho prisoner? Is it not tho Magistrate's duty Jiow merely to see if a preliminary case is made out? I think we must act in this case just as if it was an offence committed hero. The question is, would I on tho evidence commit for trial in this Country. If so, must I not commit the parties for extradition ?] ,j ; . j }, .''s, ?.> In Anderson's case a prima facie case was made out, but the prisoner was discharged. And so in U. S. v. Palmer, 4 Curtis, 314. Parker is found in command of the Retribution and Brainc and Parr acting under him. [RiTOfiiE J. I think those questions are proper for a jury 36 THE CHK8APKAKE CASE. and not for the magistrate. Ilis duty is simply to deal with this case as a magistrate would deal with an offence to be tried in this Country.] The parties were only making war on the United States. They took the vessel on tlio part of the Confederate States. The organization was under the color of a Confederate com- mission and that was sufficient. But if all oUier points failj the heading placed by the Police Magistrate to the depositions is sufficient to discharge the prisoners. He says the prisoners were charged with having committed piracy "within the jurisdiction of the United States and the Circuit Courts thereof, and against the laws of the United States, and the Statutes of the United Kingdom of Great Britain and Ireland." But by the United States Statutes put in evidence, it is clear that those Courts have no jurisdiction until the prisoner is found within their districts, and there is no evidence in this case of any such jurisdiction attaching at all. The United States by their Acts of Congress recognise that the high soas are not within that jurisdiction. Besides, the evidence varies from the Lieutenant Governor's warrant, which gives no authority to enquire into offences committed within the jurisdiction of the Circuit Courts of the United States, and against the Statutes of the United Kindom of Great Britain and Ireland. The allegations put in by the Magistrate, were not read to the prisoners — were not charged at first. They arose out of the evidence and on the argument before the Magistrate. Thore is nothing in the original war- rant and proceedings to support the investigation of such a charge ; and unless the evidence was taken under those war- rants and proceedings, it was not rightly taken at all. ;. , Wetmore, Q. C, (with him was Tuck) for the prosecution. Admiting the first deposition of AVillett's before the Police Magistrate to have been taken without jurisdiction and coram nonjudice, the United States Consul's letter containing the statement of the offence, and names of the parties, and pro- fessing to be made by authority of the executive depart- ment of the United States government, is in itself suf- ficient. The only person to judge of the validity of the requisition is the Lieutenant Governor. If a requisition is presented to him he must decide, and no inconvenience can arise from this, as the parties are not committed to be given up under the Governor's warrant alone. It merely autho- rises an investigation. The Statute does not require the re- quisition to be in writing. A verbal one would be sufficient. The Governor's warrant recites the treaty, and although it 'states that requisition had been made on behalf of the I^'nited States; it says also that it was made " iu pursuance of the DAVID COLLINS, ET AL. 37 treaty ;" the words "on behalf of" were iinnecessarj'. They are mere surplusage. The warrant would be sufficient if they were left out. With regard to the Magistrate's junsdietion in cases of piracy, the words of the Imperial Statutes arc cumulative. Whore it says, " it shall be lawful for any Justice of the Peace or other Person having yjowcr to commit for trial," to examine into the charge, etc., it is intended that any of these persons may act in the investigation of any of the offences referred to. The Magistrate under the statute, is to examine into the charge, and this whatever it is — and wherever he may do it, it will be equally valid. It is not necessary that it should be in presence of the party. The statute autho- rises the examination into the oftcnce, even before the war- rant for the apprehension of the criminal is issued. Under the construction of the Act, the Magistrate must first issufi his warrant to apprehend, and then by warrant commit the offender. No evidence subsequent to the issuing of the warrant is required. The Magistrate could, had lie seen fit, have committed them on TYillett's depositions'alone. The second section of the statute which enacts that " copies of the depositions upon which the original warrant was grant- ed, certified under the hand of the person or persons issu- ing- such warrant, and attested upon oath, may be received in evidence," does not render a preliminary proceeding in the demanding country necessary in all cases. The words are merely permissive. They legalise the use of such depositions if taken in tlie demanding country — do not render it neces- sary to take them. The parties were duly " charged" within the terms of the statute by the United States Consul's I'equi- sition. The word " charged" in the statute does not mean any specific charge or particular form of charge. Suppose the case of proceedings before a Justice on an accusation of murder ; but it appeared on investigation that the crime had been committed beyond his jurisdicaon, and in the United States. There the party would be "charged" by the depositions before the Justice. And in this view the parties were "charged" by Willett's first deposition. In the form of warrant given in Besset's Case, (6 Q. B. 481) the word used is not " charged" but "accused." The Statute does not confine the rendition to fugitives from the jurisdiction of the demanding Country. The words ot the Treaty recited in the Statute expressly extend to all criminals who "should be found" as well as those who " should seek an asylum " within the territories of the other nation. .;; us Q:m As to this crime having been committed on the high seas 88 TBK CBEBAPKAKU CABV. ; and our Courts having jurisdiction over it, there can be no doubt that the Courts of the United States have a co-ordinate jurisdiction. Having made a requisition, then they are en- titled to have the criminals given up. The United States vessel was United States Territory, and the United States had full jurisdiction over her. Kent's Com. Ed. 1832, v. 1, pp. 184, 6, 7. Wheaton Intl. Law, pp. 208, 9, Regina v. lleane, Times, Feb. 1, '64. " The Flowery Land " London Morn- ing Post, Feb. 5, '64. The "Chesapeake" had an United States Register and carried the United States flag. There is nothing in the Statute to limit the word " piracy " to municipal piracy. If it does not mean piracy by interna- tional law it means nothing at all, and if it intends only what would be piracy by the municipal law of the United States and not here, for such an oft'ence the parties could not be given up at all. There must be a similarity in the laws of the t\vo Countries as to the offence. The question of the parties holding a valid commission from the Confederate States would clearly be a matter for consideration at their tinal trial, and not at this preliminary stage of the proceedings. It is a question for a jury. There was no real proof of Colcock's signature to the transfer from Power to Parker. No greater particularity can be required in the warrant of commitment in the present case, than in any proceeding in our own Courts. This is a preliminary proceeding, and no such great particularity is therefore required. Besides the proceedings may be amended. The English decisions cited on this point by the prisoners' Counsel, do not apply. The Act under which the order was granted in this case, differs from the habeas corpus statutes, and enables the Judge to "make such order as he may deem necessary." The Magistrate's heading of the evidence is immaterial. It cannot create any variance between the Lieutenant Governor's warrant and the proceedings taken under it, or invalidate the proceedings if otherwise correct. GuAY, Q. C, in reply. The alteration in the heading of the evidence is very important. It saps the very foundations of justice. If a requisition is mode and a warrant issued and the magistrate takes evidence on a different charge it is a se- rious matter. The alteration has a suspicious appearance and was made to cover an objection raised at ihe trial. It has a material bearing on the case. If the evidence does not correspond with the Lieut. Governor's warrant what evidence is there to show the parties are guilty at all. In that case the parties are in gaol under a commitment not supported by the evidence. If there is no evidence the commitment is irreg- ill DAVID COLLINS, ET AL. 89 iilar aud illegal. If there is evidence it does not support the charge. And the proceedings cannot bo amended by the evidence. Christie v. Unwin, 11 Ad. and El. 373. As to the sufficiency of the requisition, the effect of the ar- gnmcnt of the Counsel for the prosecution would be that a warrant for the arrest of any person, claimed to have com- mitted an offent c in the United States, could be issued without any sworn depositions at all. And the evidence negatives the inference drawn from the warrant's reciting it was issued '"in pursuance of the treaty." Surely any person calling himself an United States Consul cannot by merely writing a letter to the Lieut. Governor, have a warrant issued, calling on all Magistrates to arrest any number of her Ma- jesty's subjects the Cont?ul may choose to name. ' • And under the Imperial Statute, the Lieut. Governor's war- rant could not authorise the magistrate to take Willett's second deposition It could onl}- autliorise magistrates to act " within their several jurisdictions." The United States can only be entitled to jurisdiction over piracy on the high seas when the pirates are found within their jurisdiction. If found here we have jurisdiction, and our Courts must use it. There is nothing to shew that this particular case is, in tho opinion of the United States Government or Courts, within their jurisdiction Had proceedings first been taken there it would have been otherwise. There is now no United States officer authorized to receive the prisoners on their being taken to the boundary. The original warrant is bad as com- bining two distinct offences — murder and piracy. The Learned Judge, having taken time to consider, on tho 10th March, 1864, delivered the following JUDGMENT. IN UK i' \ 'ID COLLINS, ) Prisoners confined in the Com- J.\;v:F McKINNEY, and } mon Gaol of the Citv and LliSi ;T:J SEELY. j County of Saint John." This wi»s nu apjilicatioii in.icle to inc on behalf of the above named prisontrs, under the Act of Assimbly 19 Vic. cap 42, entitled '• An Act for better securing the liberty of the subject;'' and suft'uicnt ouiisc having been shewn to me, I did> by order in writing, rcijuirc iuid direct the Keeper of the .lail of the City and County of Siiint John to return to me wliciher or no the said parties were detain- ed in prison, together with the day ami cause of their having been taken and detained ; to which order the Sheriff of the City and County, of Saint John, the oper of the said Jail, returned to me that the said parties were confined in the s ■'] Jail under a warrant from Humphrey T. Gilbert, Police Magistrate and Jus- iJ.Lt of the Peace for the City and County of Saint John, from the following dates: McKinncy from the 26lh day of December last past; Collins from the 27th of December; and 8ecly from the Ut day of January last past ; except when orden-rf M J- 'I -1 40 THE 0IIB6AFUAKK 0AS2. for examination by the said Magistrate, up to 1 1 o'clock or thereabout* of the morning of the Slth February, then instant, when they were taken to the Office of the said Magistrate ; that the said Collins, McKinney and Seely wore commit- ted to ihn said Jail at mid-day on the 25th day of February, then instant, with a warrant or commitment, which the said SherJlT seLs out verbatim ; and this he returns is the cause of the detaining of the Haid parties whose bodies he says he has ready. The warrant or commitnienl set forth is under the hand and seal of Humphrey T. Gilbert, Esquire, a Justice of the Peace of the City and County of Saint John, and Police Magistrate for the City of Saint John, and dated 2.'>th February, 1864. (Vide Appendix F.) On this return being made to me at the time appointed for the hearing of this matter, on application made on behalf of the said prisoners on the affidavit of David Collins, I did, in pursuance of the power and anthority in me vested by the Act of Assembly, 19lh Vic, chap. 42, require and direct a return to be made to me of all the proceedings, examinations, orders and depositions taken before H.T. Gilbert, P. M. and J. P., &c., under and by virtue of a Warrant purporting to be issued by His Excellency ihe Lieutenant Governor, dated the 24th Dec. 1863, the same being deemed by mc necessary and proper for the purposes of Justice to en- able me to examine into und decide upon the legality of the imprisonment of the said parties ; and I directed that notice of such order should be forthwith served on Mr. Gilbert, who, upon notice thereof, returned to nic all such proceedings and documents before him, that is to say the Warrant from his Excellency the Lieu- tenant Governor, the complaint '" (sane Willctt, Mr. Gilbert s first Warrant to apprehend the prisoners, the evit. i , ! all proceedings on the part of the pro- occution, and the evidence and all pi ngs on the part of the prisoners, includ- ing copies of the original letters and ih equisition of J. Q. Howard, Esq., U. S. Consul at the City of St. John, upon which the Warrant of His Excellency was issued, and of the original depositions of Isaac Willett und Daniel Henderson trans- mitted by the said Consul with one of the said letters, duly certified agreeably to the Act of Assembly, under the hand of the Hon. S. L. Tilley, Provincial Secrc- t.iry, and the charge at length on which the examination l.efore Mr. Gilbert pro- ceeded. (Vide American Consul's letters — Appendix A.) • The depositions transmitted with one of these letters professed to have been sworn before " H. T. Gilbert, Police Magistrate of the City of Saint John," on the 22nd Dec, 1863, the Jurat does not say where. The depositions are headed " Province of New Brunswick, City and County of Saint John, to wit," and com- mence " Isaac Willett of the City of JN'ew York in the State of New York, United States of America, Captain of the steamer " Chesapeake" belonging to the United States of America, and Daniel Henderson of the City of Portland in the State of Maine, one of the United Slates. Second Mate of the said steamer," and then de- tail, so far as within their own knowledge or what they heard on board, the cir- cumstances of the capture by certain passengeis (fifteen in all,) of whom the names of Braine, Collins, Robinson and Parr are given, the nemes of the others being unknown to them, of the steamer Chesapeake when she was about 20 miles North North East of Cape Cod, the shootingoftheEngineer,woundingof the Mate and Second Engineer, and the forcible taking possession of the vessel, and the send- ing on shore in New Brunswick of the Captain and all the crew except the first and third Engin..ers and three Firemen, who were retained on board ; and the de- ponents state that they are informed and fully believe that J. C. Braine, H. C. Brooks, David Collins, John Parker Locke, alias John Parker. Linus Seely, George Robinson, Galbraith Cox, Robert Cox, James McKinney, Robert Clifford, and H. A. Parr were among others the captors of the said steamer Chesapeake, a steamer of the said United States of America, on her passage from New York to Portland, and that these persons being passengers on board took forcible posses- sion of the said steamer against their will rvud that of the other officers and crew of the said steamer". But except detailing the facts above referred to. no charge of Piracy or Murder is made, and no allegation whatever of the acts having been committed within the jurisdiction of the United States. .1,. Vide Append"!. I for charge, touching which the witnesses were exitniined by Mr. Gilbert DAVID COLLINS, ET AL. 41 The prisoners by their Counsel claim that their detention is illegal, and a great variety of objections were urged at length to tlic proceedings in this case. They lire all, I think, covered by the following : First, that there was no legal charge against the prisoners in the United States or in this Province of an offuncc mentioned in the Statute committed within the jurisdiction of the United States, nor any proper requisition by the authority of the United States for the rendition of the prisoners, and therefore the Governor had no authority under the treaty and statute to issue his warrant. Secondly — That if ho had, Mr. Gilbert had not, cither as Police Magistrate for the City of Saint 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 the persons accused thereof. Thirdly — That if Mr. Gilbert had jurisdiction, the evidence before him showcf' that the offence 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. Fourthly — That if he was not wrong in this he wrongfully took a fresh com- plaint, and wrongfully examined on charges contained in that complaint, and not on the charge in the Governor's Warrant, and that the Warrant he issued and under which the prisoners are now detained is bad on its face and not sufficient in law to justify their detention. 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 so restrained of their liberty. The Writ of Habeas Corpus at Common Law and by statute, and the sta- tute of the General Assembly under which I am now acting, are the constitutional means in this Province by which all alleged improper imprisonments are enquired into, and Her Majesty's Supreme Court and the Judges of that Court are bound on proper cause shown to investigate all cases of alleged unlawful arre-t, and to relieve therefrom, if shown to be contrary to law. The right to grant such relief in this case has not been, and cannot be questioned. Having then ail the proceed- ings before me I have to ascertain and determine whether or not such proceedings are justified by and in conformity with the Treaty and Act of Parliament. If they are, this application must be dismissed. If they are not, the prisoners must bo discharged. The Treaty, under which the delivery up to the United States Government of the prisoners is sought, is a Treaty ratified on the I3th of October, 1842 — " to set- tle and define the boundaries between the possessions of Her Britannic Majesty in North America and the Territories of the United States" — for the ' final sup- pression of the African slave trade, and for giving up criminals, fugitives from Justice, in certain cases." The recital of it having reference to that portion which bears on the present case is : — " Whereas it is found expedient fo/ the better ad- ministration of Justice and the prevention of crime within the Territories and Jurisdiction of the two parties respectively that persons committing the crimes as hereinafter enumerated, and being fugitives from Justice, should, under certain circumstances, be reciprocally delivered up." And Article X. contains the stipu- lation agfreed on. (Vide Appendix B.) To enable this Treaty to be carried out in the British Dominions a statutary enactment was necessary, and the Parliament of Great Britain in the 6th and 7th year of Her Majesty's reign passed an Act for giving effect to the Treaty, which after reciting the 10th article of the Treaty, and the 11th with reference to the duration of this portion of it, after reciting that it is expedient that provision should be made for carrying the said agreement into effect, enacts as follows : — Vide Appendix C. The authority which this statute gives the oflicer administering the Govern- ment of any Colony and all Justices of the Peace and other Magistrates and Ofllicers uf Justice within their several jurisdictions to act being a statutary power, they must one and all act strictly in accordance with the authority given, and rigidly pursue that authority. Bearing this in mind, I proceed to the consideration of the first objection. We must look closely to the Act of Parliament, fcr it is it ■• 1,1 '' 1^ I' It '■ J ' I i.' 11 fM hm I fHB OHJteAPUAKl OASX. ^ from that, and that nionc, the authority to net procccils, ami the very first words of the enacting part of the statute show Ihat the hasis of this right is on an event. " In case Requisition vliail nt any time lie made by llie nutliority of the United States in pursuance oC and according to tiie said Treaty for tlio delivery of any person charged with (certain crimes including Piracy) committed within the juris- diction of the United (States &c. Thus we see the Requisition is not to ho a simple bald request fur the delivery up nf the perNon named, liut it is a Requisition which must be by the authority of the U. S. — it must be in jiur.'uance of and in ac- cordance with the Treaty — it must be for the delivery of a person charged with one of the oflbnces mentioned in the Treaty, and the ofTcnco with which ho is charged must have been commilleil within ihc jurisdiction of the United States. If a case perfect in all these iiigiedieiits in presented, the staluto says it shall be lawful for the Administrator of the (lovemment of any Colony or Possession by a Warrant under his hand and seal, io signify that such requisition has been made. Deficient in any one of these statutary requirements the Governor is powerless to act. Let us therefore examine the documents upon which His Excellency issued his Warrant in this case. They all bear date on the same day, and in the absence of any evidence to the contrary, I may assume were laid before His Excelleney nt tho same time, but the letter signed J. Q. Howard, U. S. Consul, in which the prisoners are named, would appear to have iicen the first wrilten. It is a commu- nication addressed to the Lieut. Governor through the Provincial Secretary. The first part of this letter is simply a request that the Governor will use his authority under the Act of Parliament " to the end that certain oflcnders (not naming them or their crime, or the phicc or Jurisdiction within whicii committed) may be appre- hended and delivered up to Justice" (not staling to whom.) It then proceeds to desire the Secretary to make known to His Excelh>ncy. that as an oHiccr of the United States Government the writer is authorized by the Executive Department of that Government to make a Requisition ujion him as tho officer administering the Govf«rnment of this Province, in order that certain persons (not naming them) believed (not charged) to be guilty of the crime of Pirary (not stating within what jurisdiction committed, and not stating whether piracy against the law of nations or piracy against the municipal laws of any particular country) may be brought before the proper officers of .Justice, so that the evidence of their guilt or innocence may be heard anJ considered ; and then hi! requests that, in accordance with the provisions of the said Act of Parliament, His Excellency will by Warrant signify that a Requisition has been made for the apprehension of John C. Brainc and olhera, including the prisoners, and require that all Justices of the Peace and other Magistrates within the jurisdiction of this Province shall aid in apprehending the above named persons accused (not charged) of the crime of piracy, for the pur- pose not of having them delivered up, but for the purpose of having them brought to trial. Under the statute we have seen the Requisition must bo made " by the authority of the United States," that is of the Government of the United States. Had Mr. Howard been a public Minister of the United States, and so the repre- sontativo of that Gevcrnment, a Requisition by him would doubtless have been good ; but I am not aware that as Consul he had any such authority unless speci- ally delegated. Perhaps the fair construction of that letter would be that Mr. Howard intended to convey to the Governor that he was so specially authorized, but tho authority he claims is simply " in order that certain ])crsons hcUcved to be guilty of the crime of piracy may be brought before the proper officers of Jus- tice, so that the evidence of their guilt or innocence may be heard and considered." This is all that he puts forward as to the extent of his authority, and upon this, without production of the authority, he proceeds to request that His Excellency will by Warrant signify as before slated. No authority from the Government of tho United States is shown or directly alleged authorizing him to ask for the appre- hension of tho individual parties he names, or to ask for their apprehension r.s charged with the crinio committed within the jurisdiction of the United States, but simply of parties accused of the crime of piracy, for the purpose not of being delivered up under the Treaty, but for the purpose of having them brought to trial. Had His Excellency issued such a Warrant as is hero asked for, I have no h«Bitttion in saying, for the TCBsons that will hereafter be givfln in considering Tf DAVID COLLINS, ET AL. 48 another branch of this caso, it wouKI have been bad. Is the matter then helped by the second letter? Dy thin letter (he Consul transmits aflidavits uftho Cop* tain and ficcond Mate, sworn at St. John beloro II. T. Gilbert, Police Magistrate, on no ciiargc or complaint, to bi; [jrcsentcd to Hin Excellency in case " he requires evidence of the criminality of the persons chargcil with the ciinie of Piracy before issuing the Warrant for having them brought to trial." A sincere hope is then expressed that no obstacle will lie thrown in the way of bringing those charged with so grave an olfence to justice. If there are dcficiencicH in the first, it can hardly be urged that they are supplied by this letter or by the depositions accom- panying it. His Excellency being one of the Commissioners named in the Royal Commission for taking information nnd apprehending and committing for tria' persons charged with offenceB on the high seas, and if brought to trial, one of tho Judges to try them, this letter instead uf being a Requisition under the statute, or in aid of ii Roquistion, if I may use the expression, mure resembles an application to Hi^ Excellency in that capacity than to him vinder tho 6th and 7th Vic, as an ofliccr administering the Government, more particularly as tho last paragroph, says : " We had believed until this late hour that a Requisition before the £xccu> tive would not have been required in the first instance," which would rather corroborate the view that piocecdiiigs were desired, independent of a requisition. As to the depositions in my opinion it cannot make the requisition good if not good without it. It appears to have been sworn before Mr. Gilbert as Police Magistrate, and was, I think on his part wholly extra judicial. IS'o complaint or information op- pears to have been laid before him to justify his taking the deposition, and if the chorge of Piracy, which the siatements in it unanswered would justify, hod been made at that time before him, he had no jurisdiction to entertain it; stil! less had ho jurisdiction if the oflence was an alleged crime committed within tho jurisdic- tion of tho United States, and therefore amounted to no legal charge, and to no legal evidence of the crime of Piracy ; but is it not absolutely necessary that tho parlies should be charged with the commission v/ithin the jurisdiction of the Uni- ted States of one of the crimes mentioned, that is legally charged judicially, or by public process, or in some manner warranted by the laws of the country in which the alleged oflence was committed. I think the words of the statute too clear to admit of any reasonable doubt on this point ; and the 2nd section of the Act con- £rms mc in this view. This Section contemplates it being done by the issuing of a warrant, for in providing that certain evidence may bo used by the Magistrate or officer in the investigation of tho criminality of the person apprehended, it says, •» copies of the depositions upon which the original warrant waa granted, dec," This obviously refers to the original warrant granted in the country where tho crime was committed, and anterior to the requisition ; and this view would seem to bo entertained by jurists of the highest celebrity in the United Slates, (or in tho judgment of Nelson, Justice, in the Supreme Court of the United States in Kane's case, as reported in 14 Howard, he says ; " This species of evidence is very difler- cntly guarded in tho Act of Parliament, 6th and 7th Vic. There, copies of the de])osition8 laid before the Government, and upon which tho proper olHcer issued his warrant to the Magistrates authorizing them to insti- tute proceedings to arrest and commit the fugitive, are those only permitted to bo given in evidence ; ih other words, copies of tho depositions upon which tho Government acted in the matter ore admissible os evidence of criminality. Tho original of these are those upon which our Government make the requisition, and of course the good faith of tho nation is pledged that they ore taken before com- petent ofliicerfl, and that the facts stated are true." And Chief Justice Taney concurring, as he said he did. in all that Nelson, Justice, then said, contented himself with expressing his entire assent to the opinion Nelson had then just de- livered ; and Daniel, Justice, concurred in all that Nelson, Justice said. And that this principle has been acted on will bo seen by reference to Bissct's case, 6 Ad., and El., in England, where wo find a warrant was first issued in France, and to Kane's in the United States, just referred to, where a warrant was issued in Irci- land, in addition to the special authority and af^aavit of the Consul. In Kane's case, reported in H Howard, Mr. Barclay, tho British Consul was specially em- ployed, the report sayi, by direct authority of the British Minister, accredited t9 44 THB CHESAPEAKE CASB. Ill TV'; m the Government of the United States, Bnd in parsuance of tbii authority Mr. Barclay made the nocesiary afliduvit ; and no caso has been cited to me, nor am I aware of any, whore a difTerent practice has been adopted. On the contrary I find in a note to the last edition by Lawrence of Whcaton's International Law, this view coniirmod by the opinion of Mr. Gushing, May 21st, 1854, in the published opinions of the Attorneys General of the United States, volume 0, page 48R. The practice is declared by him in those words : — " The practice of our own Government, as well as that of Great Dritain, re- quires that all claims of Extradition should bo founded on a judicial warrant, with proper evidence to justify the warrant. The United States will not, therefore, make a demand on Great Britain for a person alleged to be a fugitive from the justice of one of the United States without the exhibition of a judicial warrant is- sued on sulTicient proof by the locu! authority." And again, in an opinion by the same learned gentleman, Nov. 2, 1854, published in the same work, vol. 7, page 6, ho says : " A more notification from a foreign legation that a party guilty of a crime has escaped, and perhaps lied to the United States of America, is not sufficient to justify the preliminary action of the President. The general rule is, the Government of which extradition, whether by comity only, (citing Kluber Sec. 66, Martin's Precis, Sec. 101) or by Treaty, is demanded, before it is called on to act, must have reaaonMo prima facie evidence of the guilt of the party, submitted to it, as well as the demand of the Executive authority." And again vol. 8, 215 page, in another opinion of the same, ho says : " But to justify the commencement of proceeding in extradition it must appear that the criminal acts charged were committed within the territorial jurisdiction of the demanding Gov- ernment." But suppose the documents contain a charge against these prisoners, where do we find it alleged in them that the offence charged was committed within t^ti ju* risdiction of the United States of America ? The crime stated is Piracy. In its primary and general signification, this indicates an ofluncc against the law of na- tions, justiciable wherever the oflender may bo found. In the codes of different countries it has been arbitrarily adopted as a terra applicable to offences against the Municipal Laws of such countries, or as expressed by the Commissioners in England in their report on the criminal law : " by Statutes passed at various times and still in force many artificial oflences have been created which are to be deemed to amount to piracy." All such offences would be cognizable only by tribunals having jurisdiction either territorially or over the person of the offender. If it was intended in thi^ case to bo 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, without knowing whether it was ■uch an offence as would be cognizable in our Courts possibly bo able to enquire into the sufficiency of the evidence according to tho laws of this Province 1 If it was intended to use the term, as I think it must be taken to have been in its gen- eral sense, then the question has been raised whether inasmuch as it was not alleged that any of these parties had been in the United States since the acts on tho high seas complained of were committed, but the contrary was admitted on both sides, how can the ofi'enco be considered as committed within the juris- diction of the United States 1 The object of the Treaty fs to be found in one of its recitals, which is : " Whereas it is found expedient for the better administra- tion of justice and the prevention of crime within the territories and jurisdiction of the two parties respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up." It is well known that the principles of the Common Law pervade the jurispru- dence of both Great Britain and the United States, and by the Common Law, crimes are unquestionably considered local, cognizable and punishable exclusively in the country were they are committed ; and it was doubtless to prevent the failure of Justice that would necessarily result from offenders in one country seek- ing refuge in tho other and there being amenable to no punishment, that this Treaty was entered into ; and it is not difficult to understand how the crime of Piracy, in its general sense, might come within the operation of the Treaty when DAVID COLLINS, BT AL. 45 tt pirate having gone into one or other of the countries nnd so made himnelf amen- able to ita courts and had been there legally charged with the ofTence had fled or been subsequently found within the territory of the other, that in such a case the country whnre he was first found might claim jurisdiction over the crime ond the person so charged. But I have great difficulty and nm as yet unable to arrive at the conclusion that, when the piruto has never after committing the oflcnce en- tered the country of one of the contracting parties but is found in the territory of the other, the Government of the former can assume jurisdiction over the offence and person, and require him to be given up, and so denude the latter country of its clear jurisdiction in the matter. I cannot, as at present advised, think it was intended by this Treaty to raise such a conflict of jurisdiction and authority, but that the word piracy was intended to apply to piracy in its municipal acceptation, or if to piracy against the law of nations then to the exceptional cane I have above supposed ; but assuming the olTence as alleged to be one within the Treaty, and the Requisition to bo sufficient, I proceed to consider the next objection. Had Mr. Gilbert, cither as Police Magistrate or u Justice of the Peace, authority to examine touching the truth of the charge 1 The terms of the Statute are that the Warrout of the Governor shall "require all Justices of the Peace and other Magistrates and ofFicors of Justice within their several jurisdictions to govern themselves accordingly niid to aid in apprehending &c., — and thereupon it shall bo lawful for any Justice of the Peace or other per- sons, having power to commit for trial persons accused of crimes against the laws of that part of Her Majesty's Dominions in which such supposed oflenders shall be found, to examine upon oath, &c." The words of the Statute differ from the Treaty. The words of the Treaty are " Judges and other Magistrates." I am bound to think this alteration advisedly made, and I find it dif!icuit to conceive any other reason than to preserve consistency in the administration of Justice. In the Treaty nothing is said as to the jurisdiction of the Justices and other Magistrates. In the Statute the Governor can only require Justices of the Peace and other Magistrates and officers of Justice to act within their several jurisdic- tions ; beyond their jurisdiction then ihey cannot act. But the Statute says, it shall be lawful for any Justice of the Peace or other person having power to com- mit for trial persons accused of crime, &c., — that is, I am inclined to think, when accused of crimes in the United Status over which tbo ofHccrs respectively have jurisdiction to commit if committed in this Province. Then in such cases they should examine on oath, and if the evidence would justify their committal here, issue their Warrant, &.c. ; and an insertion of the words " or other persons have- ing power to commit for trial " would seem unnecessary if Justices of the Peace and other Magistrates could act in all cases. As at present advised I am disposed to read the terms " in their several jurisdictions " in their broad signification. I think it more consistent with the scope of the Statute and the duties to be per- formed that they should be considered as applying to their judicial as well as their territorial jurisdiction, it being, I think, unreasonable to suppose that a Justice of the Peace, who cannot receive an information on a charge of piracy, or examine into the truth of such charge if cognizable in this Province, should, if committed in the United States, determine on the sufficiency of the evidence according to the laws of this Province if the crime was committed here ; or in like manner that the Commissioners authorized solely to receive information and commit for trial in cases of offences on the high seas, should deal with crimes over which if com- mitted in this Province they have no jurisdiction ; and from this construction no possible difficulty can arise, because for every crime named in the Statute we have either the Justices of the Peace or other persons having power to commit for trial ; bo that in this case when it appeared by His Excellency's Warrant that the crime charged was Piracy, Mr. Gilbert, whether as Police Magistrate or Justice of the Peace, not having jurisdiction over such an offence and no power to commit for . trial a person charged with Piracy, could have referred the matter to the Judge of ' the Court of Vice Admiralty, or some other one of the Commissioners having authority over that offence and power to commit for trial persons charged there- with. To confine the Magistrate and oflicers to their respective jurisdictions is, 40 TAB OHBSAPBAKR CASH. in my opinion, in no rcppcct to conflict with any ciauie in tho Treaty hut in har- mony with it, nnil in furthonincc of a proper ami diacrcct execution of its atipula* tions.* Uut assuming tho Kequisition right onJ thiit tlie Mugistrutu had juriiidictioni wo must contider (lie third Point. Tim queiitian hero raised wan argued as if I wns sitting in tho clmracter of n Court of licvicw or Error on tlio decision of the Maijidtrnto on tlie fuctii proved bcfure liim. Such, I think, is not tho case. Tho dir'y of dctornjining on the suiriciency of ihc evidence is cast on the Mogistratc or other oirnors. lie is tho person to lie sntisficd that tho evidence justifies the ap- prehension and committal for trial of the persons accused. The amount and vuluo of that evidence is for his dctcrminiilion. A Judfje of the Supreme Court might tiiinlc tho evidence of guilt strong ond of innoccncy weak, or I'ice vena, but tho law has vested tho Magistrate with the power of weighing and deciding on tho cfTect of tho evidence, and it is the result on his mind that is to determine its sulFiciency or insuincicncy. It is a Judicial discretion with which ho is vested, wiiich, I think, is not open to question on Habeas Corpus, nnd cannot bo takon from him and assumed by a Judge of the Supreme Court. If it was manifestly apparent that the evidence showed that no oflencc had been committed or that tho party was unquestionably innocent and therefore there was really no matter of fact or law to be tried, no matter in which tho Magistrate could exercise a discre- tion or judgment, then tho case would be very diflerrnt ; but is such tho case before us? 'i'hat the vessel was scizcu and by force taken from tho Captain nnd crew on the high seas, is not disputed. Unaswerod this is n prima facie caso of Piracy, and the burthen is cast on the accused of justifying this apparently wrongful act. Tho justification set up is that hostilities were existing between tho United States and tho Confederate States of America, and this seizure was made under a Com- mission from, or by uuthority and on behalf of the Confederate States, and that tliereforc it was an act of legitimato warfare and not of a piratical character. This, on the oilier hand, is denied, and it is alleged that tho claim to act under tho authority of tho Confcdernte States is mere pretence and color to disguise nnd cover an illegal depredation. The object of privateering in general, is not, as Mr. Kent observes fame or chivalric warfare but ]ilunder and profit: but at tho present day tho rights of private armed vessels and private belligerents cannot bo doubted. Unless restrained by Treaty stipulations tiio right to commission private armed vessels is, by tho laws of nations, esteemed a legitimato means of ilestroying the commerce of an cnc:ny, and captures mado by private armed vessels of one belli- gerent, even without a (Jommission, though not in self defence, are not regarded as piratical cither by their own Govern'. icnt or by the other belligerent State. It docs not indeed vest the enemy's property thus seized in tho captors, but tho seizure would bo declared a prizu of war to tho Government of tho cnptors ; and it is equally true that neutrals taking commission as privateers and acting on them are likewise free from the imputation of Piracy. They may make themselves amenable for the violation of the laws of their own country, and may denude themselves of the right to claim her protection to shield them from tho consequences of their acts, but they cannot bo dealt with by tho belligerent against whom they are noting as pirates. But as neutrals they stand in a very different position from belligerents. Belligerents, we havo seen, may make captures ftrithout commissions. Neutrals can only protect themselves by commissions from, or by acting under authority of the belligerent Government, or on board commissioned vessels, or under duly authorized uflicers. They cannot, without any commission or authority, fit out in a neutral country n hostile expe- dition against a power at peace with such country, and, under pretcncoof acting in (•i, ,i ■ * Tho Imperial Statute 12 and 13 Vic. c. 93, passed in 1819 " to provide for tho proso- "cution nnd trial, in llor Majesty's Colonics, of offences committed within tho jurisdlc- "tion of the Admirality" and giving Colonial Alagistrates jurisdiction in such cases, was not cited before tho Polico Magistrate, nor brought to His Honor Mr. Justice Ritchie's notice in tho argument in this case. It would appear to affect so much of His Honor's decision as rohi'cs to tho jurisdiction of tho Police Magistrate of Saint John in eases of piracy, without however affecting the conclu.sion finally arrived at; that being boaed on defects in the requisition and other proceedings, and the construction of the Imperial Statute 6 and 7 Vtc. c. 76, as well as the want of jurisdiction in the Magistrate.— .ffcporf«r. DAVID COLLINS, IT AL. 47 tho name of, or on the ln'liiilf, of n liplligpri'nl power, rommmit nrJn on tlic lii(;li'»ca» that would, unlrsH protoctcil hy liplligcrcnt rights, be ads of Piracy, anil not lie hclil rcHpuiiHiblo criminiiiiy for hucIi acts. Ami therefore it Iiehoovea perNons not belligerents but FubjcclN of a neutral power engaging in aclH of hostility, if they wish to escape the imputation of criminality, to bo well assured when tliev depre- drttc on the shipping of n nation at priice with tho one to whom they owe allegiance and in opposition to the municipal laws and neulnd policy of their own (iovern- mcnt, and in direct defiance of the express Proclamation of their Sovereign, that they are acting under tho authority of a commission which will bear tho test of n strict legal scrutiny. In tho ])rescnt ease, can it ln! said that this w;ih made out bo clearly and unequivocally that there was nothing for the Magistrate to deliberate on — nothing for a Superior Court or Jury to try ] Without e.\piet>Hing the slight* est opinion of the guilt or innocence of ihe parlies, or the pmbable result of a trial cither before a judicial tribunal in this Province or in the United States, it will only bo necessary to refer generally to the evidence on behalf of the prif oners to show that tlio case is by no means so entirely free from doubt or (picHtion as their Counsel nssumed. Instead of showing that they were acting under a regular commission, or were belligerents themselves, or that the expedition jiroeecdcJ from the Confederate States of America, it ajipears, so far as there is evidence of tho nationality of the parties engaged, that they were British subjcctH, that the plot to seize the vessel was concocted in this City, that the commission under which they claim to net was not directed to any of the persons engaged in this capture, nor were any of them named in it, nor did it relate in any way to seizure under cir- cumstances such as the present — that it was n commission dated 27th Oct., 18C2. whereby tho vessel " Ketribution," Thomas U. Power, Commander, was authorized to act as a private armed vessel for the Coiifederalc States on the high seas against tho United States, on the back of which commission is an endorsracnt dated 2l8t Nov., 1862, signed Thomas D. Power, whereby he transfers the com- mand of tho schooner '• Retribution" to John Parker. The commission is j)roved by proof of the signature of Jefferson Davis, President of the Confederate Slates, and of Iho Seal of the Confederate States attached thereto ; but the endorsement is jtroved by the slightest evidence of the liand-vvriting of the subscribing witness. There is no evidence of who this John Parker was. It was proved that at Nas- sau tt Nova Scotian named Vernon G. Locke, who had been residing for the last twenty years in the United States, and whose family is now living at Fayetlcville, was last summer in tho month of May at Nassau, in command of the " Retribu- tion," and that he was there received and recognized as lier Captain, under the name of John Parker. Whether he was really the John Parker named on the back of the commission, or assumed that name with a view of re|)rescnting that person was not shown-, except as an inference might Ih? drawn from the facts one way or other. This commission was produced at the Lower Cove meetings by Locke alias Parker, but there is not a particle of evidence as to the whereabouts of tho "Retribution," ut that time or since, or that he was then Captain of her. fn fact the only evidence of her at all was her being at Nassau in May last sum- mer. Whether she was in existence or not, or, if in existence, where she was, or under whose command when this expedition was planned and executed, did not appear; nor was there any evidence to show that any of the parties engaged in the capture had ever been on board the " Retribution," or in any way connected with her. On the contrary, Draine, who would appear to have been in charge of the capturing i)art;-, described himself on board the "Chesapeake," and was ad- dressed by the title of Colonel. Locke alias Parker, did not proceed on the expe- dition, (though h' boarded her subsequently off Grand Manan and took the com- mand,) hut add.cssed an order to " liieut. Commanding John Clibbon Uraine," requiring him to proceed to New York with 1st Lieutenant H. A. Parr, 2nd liieu- tenant David Collins, Sailing Master Tom Sayers, one Engineer and crew of 22 men ; engage passage on board the steamer, using his own discretion as to time and place of capture, to act towards the crew and passengers in accordance with President's instructions, and . as circumstances permit, bring his prizfc to Grand Manan for further orders. This is signed John Parker, Captain C. S. Privateer " Retribution." There is no evidence of what these parties were ofliccrs, or how or by whom they were appointed, with the exception of Pavid ('ollins, and ho THE CHE8APVAKI CASI. ) > m Hi apnoari to havn K^i lii* rommiiiion of hccoihI Iiifu(<>naiit from John P«rk«r. Tt in in lIicHc word* : To David Colliiu. RrpoaiiiK c'onftilcJKT in your zcnl nn>i oMIity, I do hcrcliy nnthntizR and com* tiiiHtiioii you to hold iind uhbuiik* tlir rnnk of Snd I/iiMitpminl, iinitted within the jurindictinn of tho L'niteil Htnlei wmi ob- lalncd I am at n loits to conceive, for neither the ('onciil nor Willett nor llender* Non «)iy anythinp; nhout it, unlesN it wan auMumed tlmt n» iherc could not ho a Kcquiaition for an olfenrc utdesM no committed, the ofl'ence alleged muit neceHiiarily have hcctt committed within the neeeniiary juri«diction. Again, thin Warrant doei not allege that the Hequinition wax made hy the oulhority of the IJnitcu Statea hut on heiiulf of the United States, hy no meann cimvcrlibie termit, though it il true this allegation in preceded hy the averment thiit in pursuance of and in iccorJanco with tho miid Treoty and Art, n [{eiininition hns heen made, &c. With ihcne cxceplionn the Warrant of Hi'* Excellency appear* to he in strict conformity with the Statute. Mr. (Jillirri's Wnrraiit then, ii« we have iccn, pro- ceedn to recite that on receipt of thin Warrant ho examined Inaac Willett under ojtii toucliing the truth of the char^fcn Hct forth in »nid Warrant and upon tho evidence of the jiralieally kill nnd murder one Orin ScbalTer, the bccoti'I engineer; and in the Hame language nnd manner shot nt and wounded in the right knee one Charles JohuHon, chief mate ; nnd in the same language and nmn- ncr shot nnd wounded in the cliin .laines .lohiifon, cliii f engineer. Now, with nil respect for the Police Magistrate, I think this was not tho proper mode of proceeding under the Statute. When he received the Governor's War- rant, assuming ho had jurisdiction to net under it, lie should have taken no fresh complaint. He should have embodied nothing in tho form of a complaint or charge against the prisoners but what wan contained in the Warrant of the Gover- nor ; and as this was his sole aiitliority to a-t, lie should have confined himself strictly within its rcquiremenl», which was simply in the first instance to aid in oppiehcnding tho persons nci'used which he shoubl have done by issuing his War- rant reciting the Governor's Warronf, the charge therein contained against tho prisoners, the requirement imposed on him thereby, nnd commanding the nppre- iiension of the persons named therein, and should not have received a new com- plaint or introduced new cliarges or new matter against the n«cused. 'J he cor- rectness of this view will. I think, be confirmed by reference to the ImperinI Act 8 and 9 Victoria, Chap. 120. passed 8lh August, 1815, nnd the forms there given. Having so examined Isaac Willett, the finol commitment recites that upon tl.o evidence of the said Isaac W^illett, and in pursuance of the Act of Assembly, he issued his Warrant directing the apprehension of the parties to answer, not the charges in the Governor's Warrant, but the complaint of Isaac Willett. mndc on oath, for having, &.C., in the words which I before mentioned, to be dealt with ac- cording to law, the said complaint having been made nnd taken ond this Warrpnf 7 ^ 50 rnK OHEBAPBAKB 0A8B. f; r- having lipcn issued in pursunnco of a Warrant under the hand and seal or iha Oovornor, dec, in which, however. I am constrained to ililVor IVom the l;>arned Police Magistrate, the Warrant of the Governor not authorising the tiiking of such complaint nor the arresting the p irties to bo dealt with according to law, hut in the words of the Statute to lie delivered up to jnntice according, &c., and had nn application heea made to discharge the priboncrs while detained under this War- ronf, I do not see how it could have lieen successfully resisted, Ucssct's case, C, Q. U., 481, being a direct authority agrinst it on one point. That was the first dccisioii under the French convention .Act G and 7 Vic, Chap. 75, which is in the same words as the Anierican Tronty Act wc are now considoiinp. TIio War- rant of the Lord Mayor there set o>il that the Constable ic, should convey and deliver into custody the l)oily of J. U. being charged before him dec, for (hot the said J. B. is accnsed of having committed in Franco the crime of Fraudulent Bankruptcy as appears by the Warrant of Arrest issued by a competent Judge in Franco and duly ai;l!;>:nticated before me, and as also appears l>y the Warrant of one of Her Majesty's principal Secretaries of State requiring me to take cogniz- ance of such crime &c. It then avei» proof of the crimes and the Warrant com. mits the prisoner until he should be »li«ci)arged by due course of law, which is t! r effect under this commitment under the words, to be dealt with according to law. But the Court heUl the Warrant bad upon the ground that as the commitment was under a special Statutory authority, the terms of the commitment must be special and exactly pursue that authority, acting on and recognizing the authority of Mash's case, 2 Wm. Bl. 806, where it is laid down that the true distinction is that when a man is committed for any crime, either at Common Law or created by Act of Parliament, for which he is punishable by indictment, then he is to he committed until dischargcu l>y due course of law, but when it is in pursuance of a special authority the terms of the commitment must be special and exactly pur- sue that authority. The commitment then proceeds to aver that the prisoners having been brought before the Justice under the Warrant, and he having proceeded to the investiga- tion of the charge of Piracy charged against them, and upon examination of the witnesses under oath touching the offence of Piracy, and upon the evidence before him, so under oath, he did, under tlic Act of Parliament, require and command the said Constable to convey the prisoners to the Common Jail, and deliver each of them to the Keeper thereof upon the charge of Piracy , for that they having on the 7th day of December, &c., and then proceeds to recapitulate the particulars of the charge in the complaint made before him by Isaac Willett, omitting the felonious, &c., jaurder and shooting, there to remain till delivered pursuant to the Rcquisiticii aforesaid. On referring to the examinations themncU-pc, we find the charge on which the examination proceeded was of an offence which it alleges took place on the high seas, about 20 miles N. N. East of Cape Cod, in the United States of America, and within the jurisdiction of (he United Slates of America, and the Circuit Courts thereof, against the laws of the United States of America, and the statutes of the United Kingdom of Great Britain and Ireiiind. So we see that at every s'age of these proceedings the charge assumes a different phase. In the first instance tho Consul simply presents the complaint as that certain persons were believed to be guilty of the crime of Piracy. The Governor's Warront puts it as a ciiarge of Piracy and murder, on the high seas, within the jurisdiction of the United States of America, on iho coniplaiot of Willett and Henderson. TJiC complaint before the Police Magistrate is the complaint of Willtlt alone, and alleges the crimes of Piracy and Murde; in (he United States of America, and adds the felonious shooting and wounding of engineer and mate, and felonious stealing of the cargo. And on the examination liefore Mr. Gilbert there is the addition of the crime being within the jurisdiction of the Circuit Courts of the United Stales, an 1 being contmry to the laws of the I'nited States of America and the statutes of Great Biitain and Irehind. Cut indopcrdenl of these discre- pancies, which would seem to me diflicult to reconcile, or on legal principles to account for, there is, to my mind, a still more substantial objection to this warrant. Thiq is the final commitment of the accused to Jail, there to remain until deliver- ed pursuant to the Requisition. But after examination of the witkiCbscs, and before the committal, there wis something to ho don<', an all important duty to bo DAVII) COLLIKB, ET AL. 61 discbargetl, which I cannot discover from the Warrant or from ony of the pro- ceedings! before me, nnd I cnn look to nothing ciso, to hnve been performed, and which, if done, I think bhnuld clearly, unequivocnily and unambiguously appear on tho face of the Warrant, which it maiiiU-stly docs not ; and that is, that after healing and considering llie cvidcnic, the .lusticc determined nnd adjudicated that ho deemed tho same sufFicient according to tho laws of this Province to justi- fy the apprehension and committal for trial of the prisoners, if tho crime bad been committed within this Province. Without such an udjudication, tho Worrant of commitment could not issue, and without such an adjudication appearing on the faco of it when issued, I think the Warrant bad, there being without it n want of jurisdiction shown to issue tho Warrant, or perhaps rather a want of jurisdiction ti) sustain it ; and this view is confirmed by reference to8X^.'r:i:-f„ '■ A. .,„,•■■ " ." . REQUISITIONS OF THE UNITED STATES CONSUL. Sainl John, N. B., Dec. Zind, 1863. Ho:!i. S. h. TiLiBT, Pronincial ^eeretarg. I beg leave to transmit the depositions of the Captain nnd second Mate of the Steamer C/ieaapeake, to be presented to his Excellency, in case he requires evidence of the criminality of the persons charged with the crime of Piracy, before issuing the warrant for having them brought to Trial. It is to be sincerely hoped that no obstacles will be thrown in the way of bringing those charged with so grave nn offence to justice. We had believed until this late hour that a requisition before the Executive would not have been required in the first instance. „,,. Yours truly, (Signed.) " ' " ' J. Q. Howard, U. S. CunsuU UsjTED States Co.nsulate, St. Jo!in, New Brunswick, December Z'i, \B%2, HoK. 8. L. TitLKY, Provincial SeerHari/. , " ■ Sir,— I have tho honor to address, through you, a communication to the Lieutenant Governor of the Province, for the purpose of requesting that his Excellency will be pleased to use the authority vested in him by the Act of Pnr'iainent for giving effect to what is known as the " Ashburton Treaty," to the end iliat rertiun offfn- ders may bo apprehended ai.d delivered up to Justice. You will please make known to His Excellency, ihn' s an officer of the Gov- ernment of the United States, I am authorized by the ;p«'utive Department of the Government to make u requisition upon him, as the oHcer aiminiRttMing the Government of the Province, in order that certain persons believed to bo (.'uiity of the crime of Piracy may be brought before the proper officers of Justict, ihat the evi. denceoftheir guilt or innocence may be heard and considered. I have,ther fore, tho honor to request, that in accordance with the provisions of the said Acts of Par- liament, His Excellency will by Warrant signify that a requisition has been made for the apprehension of John C. Braine, H. C. Brooks, David Collins John Pat ' ker Locke, Robert Clifford, Linus Seely, George Robinson, Gilbert Cox, Robe Cox, H> H. Parr, and James McKinney, and require that all Justices of the Pea and other Magistrates, within the Jurisdiction of this Province, shall aid in appro- bending the above named persons, accused of the crime of Piracy, for the purpose of having them brought to trial. I am sir. Your obt. Servant, (Signed.) J. Q. Howard, V. S. Consul. I HsnEBT Ceutift lhat the foregoing arc true copies of the origina' letters and requisition of J. Q. Howard, Esq., United States Cunsul, at the City of Saint John, and are now on file in my otfice, (Signed.) 8. L. TiuSY, Pnw. Setsretcarjf. • MMttttrn't Office-, 2W* Janwtry, 188*. fisi^acv* 54 THE CHESAPEAKE OABS. 1^ B. Extract from the Treaty between Her Mojesty ond the United States of America, signed at Washington, August 0, 1842; commonly known as the " Ashburton Treaty." » ARTICLE X. "It is agreed that Her Dritannick MnjuBly and the United States shall, upon mutual requisitions hy them or their ministers, uflicers, or authorities, respectively made, deliver up to judttcu all persons who, lieing charged with the crime olmurder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery or the utterance of forged paper, committed witiiin the j'jrisdiction oi either, shall seek an asylum, or shall be found within thu territories of the other : — provided that this shall only bo dune upon such evidence of criminality as, according to tho laws of the place where the fugitive or person so charged shall be fotind, would justify his apprehension and commitment for trial, if the crime or offence had there been committed ; and the respective Judges and other Magistrates of tho two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a Warrant for tho apprehension of tho fugitive or person so charged, that he may be brought before such Judges or other Magistrates, res* pectively, to the end that the evidence of criminality may be heard and considered ; and if, on such hearing, the evidence be deemed sufRcient to sustain the charge, it shall bo the duty of the examining Judge or Magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fngitive. The expense of Ruch apprehension and delivery shall bo borne and de- frnyed by tho Party who makes the requisition and receives the fugitive." " 6 & 7 VIC, CAP. LX.\VI. "An Act for giving effect to a Treaty between Her Majesty and tho United States of America for the apprehension of certain offenders. " Whkrbas by the Tenth Article of a Treaty between Her Majesty and tho United States of America, signed at Wasbinglon on the r'.nth day of August in the year one thousand eight hundred and forty two, the llatifications whereof were exchanged in London on the thirteenth day of October in the same year, it was agreed that Her Majesty and tho said United States should, upon mutual Requi- sitions by them or their Ministers, Officers, or Authorities respectively made, deliver up to Justice all Persona who being charged with the crime of Murder, or Assault with Intent to commit Murder, or Piracy, or Arson, or Robbery, or Forgery, or the Utterance of forged Paper, committed within tho jurisdiction of cither of the High Contracting Parties, should seek an asylum or should be found within the Territories of thcoihcr; provided that this should only be done upon such evidence of criminality as according to the Laws of the place where the Fugiti\e or Person so charged should be found would justify his Apprehension and Com* mit.nent for Trial if the Crime or Offence had been there committed, and that tho respective Judges and other Magistrates of the two Governments should have Power, Jurisdiction, and authority, upon Complaint made under Oath, to issue a Warrant for the Apprehension o[ the Fugitive or Person so charged, so that he might be brought before such Judges or other Magistrates respectively, to the end that the Evidence of Criminality might be heard and considered, and if on such Hearing the Evidence should bo deemed sufficient to sustain the Charge it should be (he duty of the examining Judge or Magistrate to certify the same to the proper executive Authority, that a Warrant might issue for the Surrender of such Fugitive, and that the expense of such Apprehension and Delivery should be borno tind defrayed by the party making the Requisition and receiving the Fugitive ; and it is by the Eleventh Article of the said Treaty further agreed, Uiat tho Tenth Article hereinbefore recited, should continue in force until one or other of the High Contracting Parties should signify it* wish to terminate it. and n j longer : UAVID COLLINS, £T AL. 66 And whereas it is expedient that Provision should bo mndo for carrying the said Agreement into elTeel, be it en.ctcd l>y the Queen's Most Excellent Miijesty. liy niul with the advice and consent of the liords i^jiiritual and Temporal, and Com- mons, in this presetit Parliament assembled, and by the authority of the same, That in case Requisition shall at any time be made by the Authority of the said United States, in pursuance of and according to the said 'J'reaiy. for the Delivery of any Person charged with the Crime of Murder, or Assault with intent to com- mit Murder, or with the Crime of Piracy, or Aroon, or Robbery, or Forgery, or the utterance of forged Paper, committed within the Jurisdiction of the United States of America, who shall he found with'n the Territories of Her Majesty, it shall be lawful for One of Her Majesty's Prineipsd Secretaries of State, or in Ire- land for the Chief Secretary of the Lord Lieutenant of Ireliim!, and in any of Her Majest5''8 Colonies or Possessions abroad for the Officer a(lmiMist<>ring the Covern- ment of any such Colony or Possession, by Warrant under his Hand and Seal to signify that such Requisition has been so made, and to require nil Justices of the I'eaco and other Magistrates and Officers of Justice within their several Jurisdic- tions to govern themselves accordingly, and to aid in apprehending the Person so accused, and committing such person to Gaol, for the purpose of being delivered up to Justice, according to the provisions of the said Treaty ; and thereupon it shall be lawful for any Justice of the Peace, or other Person having Power to commit for trial Persons accused of crimes against the Laws of that Part of Her Majesty's Dominions in which such supposed OH'ender shall be found, to examine upon Oath any Person or Persons touching the Truth of such Charge, and upon sueh Evidence as according to the Laws of that Part of Her Majesty's Dominions would justify the Apprehension and Committal for Trial of the Person so accused if the Crime of which he or she shall bo so accused had been there committed it shall be lawful for such Justice of the Peace, or other Person having Power to commit as aforesaid, to issue his Warrant for the Apprehension of such Person, and also to commit the Person so accused to Gaol, thereto remain until delivered pursuant to such Requisition as aforesaid. " H. Provided always, and be it enacted, That in every such Case, Copies of the Depositions upon which the original Warrant was granted, certified under the Hand of the Person or Persons issuing such Warrant, and attested upon the Oath of the Parly producing them to be true Copies of the original Depositions, may be received in Evidence of the Criminality of the Person so apprehended." [The remaining sections of the Act are not material to the decision in this case] D. WARRANT ISSUED BY THE LIUETENANT GOVEBNOR UNDER TUB TREATY AND STATUTE. New Brcnswick. By His Excellency the Honorable Arthur Hamilton Gokdox, #-,7r [Seal.] 1-*%; ; C. M. G., Lioutenaut Governor and Conimander-:n- Chicf of the Province of New Brunswick, &c. &c. &c. Aktuuu H. Gokbon. To all and every the Justices of the Peace atid Officers ef Justice ^ithiu the Piovincc of New Brunswick, Greeting: Whereas in and by an Act of Parliament made and passed in the sixth and seventh years of the reign of Her Majesty Queen Victoria, entitled "An Act for giving effect to a Treaty between Her Majesty and the United States of America for the apprehension of certain offenders," it is among other things enacted "that in case requisition shall at any time be made by the authority of the said United States, in pursuance of and according to the said Treaty for the delivery of any person charged with the crime of murder, or assault with intent to commit murder, or with the crime of piracy, or arson, or robbery, or forgery, or the utter- ance of forged paper, committed within the jurisdiction of the United -.States of America, who shall be found within the Territories of Her Majesty, it shall be lawful for one of Her Majesty's "principal Secretaries of State, or in Ireland, for the Chief Secretary of the Lord Ijtentennnt of Ireland, and ii' any of Her Majpslyl* 66 ril£ CHKSAP£AKB 0A8JI. ' ' Colunioa or Possessions aliroad, for tho Officer adiiiiniHlcring the Government of any such Colony or Possrssion hy warrnnt under his hnnd nnd srni to signify that such requisition has been so mode, ond to require nil Justices of the Fcucc and other Mngislrutes and OlHccrs of Justico wiihin their H<-vcral jurisdictions to gov- ern thrmtieives accordingly and to aid in apprehending the person so accused and committing such person to gaol for the purpose of being delivered up to Justice according to the provisions of tho said Treaty, and thereupon it shall ho lawful for any Justice of the Peace or other person having power lo commit for trial persons accused of crimes iigamst the laws of that part of Her Majesty's dominions in which such supposed oU'ender shall he found, to examine upon oath any person or persons touching tho truth of such charge and upon such evidence as according to the laws of that part of Her Majesty's dominions would justify tho apprehension aiid committal for trial of the person so accused of the crime of which ho or she shall he so accused, had hcen there committed, it shall be lawful for such Justice of the Peace or other person having power to commit as aforesaid, to issue his warrant for the apprchcns'.on of such person, and also to commit the person so ac> cuscd to gaol there to renrioin until deliverfd pursuant to such requisition as afore- said. And whereas, in pursuance of and in accordance with tho said Treaty and Act. a Requisition has been made to me, on behalf of tlie said United States, by J. Q. Howaid, Consul of the saiil United States at the City of S.iint John, in this Province, stating that John C. liraine, H. C. Brooks, David Collins, John Par- ker Ijocke, Robe -t Clift'ord, liinuH Srely, Coorgc Robinson, Gilbert Cox, Robert Cox, H. A. Parr, and James McKinncy, charged upon the oath of Isaac Willelt and Daniel Henderson with having committed the crimes of Piracy and Murder on the High Seas, within the Jurisdiction of the said United States of America, on the seventh d ly ot December instant, are, or same of them arc now in tho City of S.iint John, within this Province, nnd requesting that the siid John C, Urnine, H. C. Brooks, David Collins, John Parker Locke, Robert Cliflbrd, Linus Secly, George Robinson, Gilbert Cox. Rolieit Cox, H. A. Parr, and James Mc- Kinney, may be delivered up to Justice according to tho provisions of the said Treaty. Now know vk, that pursuant to this power in me vested in and by the fi,iul Act of Parliament, I do hereby, by this warr.int under my hand and seal, sig- nify that such requisition has been sr> made, and hereby require and conunand all Justices of the Peace and other Magistrates and other o/ficers of Justice of this Province, within their several jurisdictions, to govern themselves accordingly and •to aid in apprehending the said John C. Braine, H. C. Brooks. David Collins, John Parker Ijocke. Robert Clilford. Linus Scely. George Robinson, Gilbert Cox, Robt. Cox, H. A. Parr, and James McKinney, so accn?rd, Linus Seely, George Robinson, Gilbert Cox, Robert Cox, H. A. Parr, nnd James McKinncy, to Gaol for the purpose of being delivered up to Justice ac- cording to the provisions of the said 'I'reaty. .\nd hereof they will not fail at their peril. . - Given under my hand and Seal at Frcdrricton, in this Province of New Brunswick, this Tvvcntv fourth day of December, in the twenty-seventh year of Her Majesty's Reign. Anno Domini, 1863. By His Excellency's Command, (Signed) S. L. Tilley. • ■ E. ;•'■/. >^ :■■ ,-:..•: COMPLAINT or CAPTAIN WILLETT. TAKEN BY TUB POIICE MAGISTRATE OF SAINT JOHN, the 2oth December, 1863. City and County of Saint John, — to-wit: - n The complaint of Isaac Willett, of the State of New York, in the United States of America, Master Mariner, now in the Citv of Saint John, nforesard, taken and sworn to, this Twenty-fifth day of December, in the Year of Our Lord One Thous- and Sight Hundred and Sixty-three, at the City aforesaid, before mc Humphrey T' Gilbert, Esq-, Police Magistrate fur the City of Saint John, and one of Her DAVID COLLINS, KT AL. 57 Majesty's JusticeH of the Peace lor the City aiul County of Saint John, acting under a warrant under the hand and xcal of His Excellency the Honorable Arthur H. Gordon, Lieutenant Governor and Commander-in-Chief of the Province of New Brunswick, bearing date the twiMify-fourth day of December, one thousand eight hundred and sixty-three, and iiiiuic and issued in pursuance of the Act of the Imperial Parliament, entitled an Act for giving effect to a Treaty between Her Majesty and the United States of America, for the apprehension of certain offenders; such warrant directed to all and rvory the Justices of the Peaee, and officers of Justice within the Province of New Urun«vvick. Tho said Isaac Willctt being duly sworn, saith as follows : that ho this de- ponent on the seventh day of December, one thousand eight hundred and sixty- three, was Master in charge and command of the American passenger steamboat or vessel Chesapeake, and owned l)y Henry 1$. Cromwell, of the ■'State of New V'ork in tho United Stales of America, Merchant. That the said steamboat or vessel is duly registered in pursuance of the United St.itcs laws for the registering of ships or vessels, and was so registered on tho seventh day of December, instant. That the said steamboat or vessel was of the value of the sum of sixty thousand dollars and upwards of current money of New Brunswick, and had on board a valuable cargo of the value of eighty thousand dollars and upwards of like current money, and there were at the time u number of passengers on board of the said ship or vessel. That the said vessel or .steamboat left the Port of New York on the fifth day of December instant, being then duly registered as aforesaid, with the cargo of the value aforesaid on board, and a number of passengers on a voyage from said Port of New York to the Port of Portland, in the said United States, this deponent being in command of the said steamboat or vessel. That John C. Braino, H. C. Brooks, David Collins, Robert CIKlbrd, Linus Seely, George Robin- son, Gilbert Cox, Robert Cox, 11. A. Parr, and lames McKinney, having taken passage on board of the said steamboat or vessel, left the said Port of New York, in and on board the said steamboat or vessel, as passenger'; on the said voyage. That the said steamboat or vessel proceeded on her said voyage, and while on the said voyage this deponent being in command of sa'd steamboat or vessel, the said vessel then being on the high seas about twenty miles North North East of Cape Cod, in the United States of America, on the seventh day of December instant, certain passengers on board the suid vessel, namely, the said John C. Brainc, H. C. Brooks, David Collins, Robert Clifford, Linus Seely, George Robinson, Gilbrett t'ox, Robert Cox, H. A. Parr, and James McKinney, so being passengers on board tho said steamboat or vessel, with force and arms, on the high seas, in and on board the said steamboat or vessel called the Chesapeake, in a certain place upon the high seas, distant about twenty miles from Cape Cod aforesaid then being, in and upon this deponent and upon others the maruiers then navi- gating the said vessel upon the said voyage, maliciously, wilfully, feloniously, and piratically, did make an a.<;sault and this deponent and others, the said mariners, then and there piratically, feloniously, wilfully, and maliciously, did put in bodily fear and danger of their lives on the high seas aforesaid, and then and there maliciously, wilfully, feloniously and piratically took possession of the said steam- boat or vessel and the cargo thereof ; the said steamboat or vessel being under the charge and command of this deponent, and there and then with force and arms took the said steamboat or vessel, and cargo of said vessel, from the care and cus- tody of this deponent and the said mariners, against the will of this deponent and the said mariners and then and there with force and arms upon the high seas aforesaid in the place aforesaid and within the Jurisdiction of the United States of America, piratically, wilfully, maliciously, and feloniously and violently did steal, take, and carry away the said vessel and cargo, and the said named persons did then and there with a pistol loaded with powder and leaden bullets shoot at, and feloniously, maliciously, wilfully, and piratically, kill and murder one Orin Schaf- fer, the second engineer, he being then a hand employed in and on board the said steamboat or vessel on the voyage aforesaid, and the said named persons having 60 taken possession of the said steamboat or vessel, put this deponent and others the crow of said vessel from the steamboat or vessel into and on board a pilot boat and the said named persons also then and there wilfully, feloniously, maliciously, and piratically, with a pistol loaded with powder and leaden bullets shot at and B M:': 6S IHS OHJUAPBAKl 0A8I. p'l H. T. GiLBEW, i*. M. and J. P. woandod in tha right kneo and left arm on« Charles Johnston, ho the said Char- les Johnston, then and there being chief mate of the said steamboat or vessel, and also then and there with a pistol loaded with powder and leaden bullets wilfully, feloniously, maliciouHly, and piratically shot at and wounded in tho^ chin, ono James Johnston, he, the said James Johnston, then and (her* being Chief Engineer in and on board the said vessel, and this deponent further saith that the said named persons having so taken posucssion of the said steanibnat or ressel, t''oy the said named persons proceeded from the said place where the snid oflcnces were com- mitted, to and up the Bay of Fundy, and that having proceeded to a place on the high seas about fifteen miles buluw Dipper Harbor, in the Province of Now Druna' wick, ono John Parker Locke cauw to the said steamboat or vessel and boarded her, and immediately took charge and command of the said steamboat or vessel and cargo, against the will of deponent and others the mariners of the said ship or vessel. That until the said John Parker Locke, came on board of the said vessel, the said John C. Drainc appeared to have Commond of the persons who so pirati- cally took possession of the said ship or vessel as aforesaid, and this deponent fur> thor saith that he verily believes the said Jolm C. Draine is now in the City of Saint John, in the Province of New Diurif'vick. • (Signed) ' Isaac Willett. ^ Sworn at the City of Saint John, in the City and County of Saint John, this 25th day of December. A. D., 1863, before me. (Signed) ■ -. F. ■, V ■■■.,,. ,■..• ..-r.- WABllANT FOR THE APPREHENSIOy OF THE PRISONERS. I8SUE1» BY THE POLICE MAGISTRATE. To any Constable or Peace Officer of the City, or City and County of Saint John. Apprehend John C. Braine, H. C. Brooks, David Collins, Robert ClifTord, Linu' Seely, George Robinson, Gilbert Cox, Robert Cox, H. A. Parr, and James Mc Kinney, and bring them before me or some other Justice at the Police OfTicc iu the City of Saint John, to answer the^complaint of Isaac Willett, of the State of Now York, in the United States of America, Master Mariner, made on oath for having on the Seventh day of December, in the Year of Our Lord One Thousand Eight Hundred and Sixty- three, on the high seas, about twenty miles North North East of Cape Cod, in the United States of America, on the Seventh day of Decem- ber aforesaid, with force and arms, maliciously, wilfully, feloniously, and piratically, made an assault upon the said Isaac Willett, and others the Mariners then on board, and in Charge and Command of the Steamboat or Vessel named the Chesa- peake, the said Vessel being n Vessel belonging to one Henry B. Cromwell, a Citizen of the United States of America, and being- of the value of sixty thousand dollars of lawful money of New Brunswick, and having on board a Cargo of the value of eighty thousand dollars of like lawful money, and the said Vessel being then on a Voyage from the Port of New York, in the United States of America, to the Port of Portland, in the said United States of America, and having then and there piratically, feloniously, wilfully, and maliciously put the said Isaac Willett and others the Crew of the said Vessel, in fear and danger of their lives on the high seas aforesaid, and having then and there maliciously, wilfully, feloniously, and piratically taken possession of the said Vessel and the Cargo thereof, and with having then and there feloniously, wilfully, maliciously, and piratically stolen and taken the said Vessel and Cargo upon the high seas aforesaid, and also for having at the time and place aforesaid, feloniously, wilfully, maliciously, and piratically upon the high seas aforesaid, killed and murdered one Orin Schaffer, in and on board the said Vessel on the said Voyage, and also for having at the time and place aforesaid, with force and arms, feloniously, wilfully, maliciously, and pirati- cally assaulted and wounded one Charles Johnston, and also for having at the time and place aforesaid, feloniously, wilfully, maliciously, and piratically assaulted and wounded one James Johnston, and to be dealt with according to Law. The said complaint having been made and taken, and this Warrant having been issued in pursuance of a Warrant under the hand and sti.il of His Excellency The Honor- able Arthur H. Gordon, Lieutenant Governor, und Commander in Chief of the Province of New Brunswick, bearing date the Twenty-fourth day of December, One Thousand Eight Hundred and Sixty-three, and made and issued in pursuance DAVID COLLINtJ, BT AL. 59 of tho Act of tho Imperial Parliament, entitled, an Act for giving elToct to a treaty between Her Majesty and the United Htatc8 of America, for tho apprehension of certain oflendors. Dated thii 25th day of Uccembcr, in the Year of Our Lord One Thousand Eight Hundred and Sixty-three, and given under my hand ond seal on the said date. (Signed) H. T. OiLBEnx, [l. a.] ' ^ PoL Mag. 4 Jut. of the Peace. G. COMMISSION OF r! - THE C. 8. PllIVATEER " UETUIDUTION," AND TRANSFER TO CAPTAIN PARKER. JfirrRRHON Davis, President of the Confederate Stotes of An^erica. To all who shall sec these presents, — Greeting: Know ye, that by virtue of tho power vested in mc by law, I have commission- ed and do hereby commission, have authorized and do hereby authorize the vessel called the " Retribution" (moro particularly described in tho Schedule hereunto an- nexed,) whereof Thomas U. Power is Commander, to act as a private armed vessel in the service of tho Confederate States, on the high seas, against the United States of America, their ships, vessels, goods and eflects, and those of their citizens, du- ring the pendency of the war now existing between the said Confederate States and the said United States. This commission to continue in force until revoked by tho President of the Con< federate States for tho time being. Given under my hand and tho Seal of the Confederate States at (l.8.) Richmond this 27lh day of October, A. D., 1862. By the President, (Signed) Jsp/brson Davis. (Signed) J. P. Benjamin, Secretary of State. ,. Schedule of description of the vessel. Name — Retribution. " ''' Tonnage — 160. Armament — 3 guns. No. of Crew— 30. (Endorsed.) State of South Carolina, > District of Charleston. ) I hereby transfer the command of the schooner Retribution to John Parker Witness, my hand and Seal, this twenty-first day of November. 186S. Witnesa (Signed) Thomas B, Powbr, (1.3.) (Signed) W. F. Colcock, Collector. ':r--\— ' ■' ■ "hT : ORDERS FROM CAPTAIN PARKER TO LIEUT. BRAINE. Orders. To Lieut. Commanding JohnClibbon Braine, You arc hereby ordered to proceed to the City of New York and State oforesaixl with the following officers ; 1st Leiut. H. A. Parr, 2nd Lieut. David Collins, Sailing Master Tom Sayers, 1st Engineer Smith, and crew of 22 men. You will upon arrival there engage passage on board the steamer and use your own discretion as to the proper time and place of capture. Your action towards crew and passen- gers will be strictly in accordance with the President's instructions. You will aa circumstances may permit bring your prize to tho Island of Grand Manan for further orders, Seal Cove Harbor if accessible. -"''-' (Signed) John Parker, Capt. C. S. Privateer Retribution. ■ f'si^^J-: December 2nd, 186S. 60 THE CHESAPEAKE CA8B. '' ' • ' COMMISSION TO DAVID COLLINS. ., ., ', ! I. '^'\\\ To David CoIlinH. Rrpoting contif the Tnifcd Ijilntrs, or against the itroperty of either, by Hca or by land, durin)<: the '■untinuaiKc of houtiliticu now exitfting. Thin conimiHxion to bear date fmm tin- 1st day of December, A. D., I8fi3. (Sicfned) Joiix Parkkh. J. HEADING OF THE EVIDENCE ETC., KETL'UNED liV Till': POLICM MA(HS- TRATK UEl'OUE THE JUDGE. David Collins, James McKinney, end I.inu.s Seely stand eharged before me, Humphrey T. Gilbert, Esquire, Police Magistrate of the ("ity of Saint John, and one of Her MnjcHty's Justices of the Peace for the City and County of Soint John, acting under a warrant under the hand and seal of His Excellency The Honor- able Arthur Hamilton Ciordon, ('. .M. G., Lieutenant Governor, and Commander in Chief of tiio Province of New Brunswick, bearing date the twenty-fourth dny of December, in the Year of Our Lord One Thousand Eight Hundred and Sixty- three and made und issued in pursuance of tl.e Act of the Lnpcriai Parliament entitled, " An Act fur giving elllct to a Treaty between Her Majesty ond the United States of America, for the apprehension of certain olfenders," such war- rant being directed to all and every the Justices of the Peace and Officers of Justice, within the Province of New Brunswick — For that they the said David Collins, James McKinney, and Linus Seely, (together with John C. Urainc, H. C. Brooks, Robert Clifford, George Robinson, Gilbrett Cox, Robert Cox, and H. A. Parr, not brought up before mc for examination,) diii on the seventh day of December in tho Year of Our Lord One Tiiousand Eight Hundred and Sixty-three, upon the high seas, about twenty miles North North East of Cape Cod, in the said United Slates of America, and within tho jurisdiction of the said United States of America, and the Circuit Courts thereof, then being passengers in and on board a certain passenger and freight steamer called the " Chesapeake," United States of America Register, owned, belonging, and appertaining to Henry B. Cromwell, a subject of the said L'nited States of America, whereof Isaac Willett, also a subject thereof was Master, while on a voyage from New York to Portland, in tho said United States of America, with force and arms turned pirates und the said steam vessel and the apparel and tackle thereof of the value of sixty thousand dollars of lawful money of the said United States of America and of the Province of New Bruns- wick, and a cargo owned by persons unknown of tho value of eighty thousand dollars of like lawful money then and there being in the said steam vessel under the care and custody and in the possession of the said Isaac Willett as master of the said steam vessel, then and there upon the high seas aforesaid, within the juris- diction aforesaid, about the distance of twenty miles North North East of Cape Cod aforesaid jvith force and arms from the care, custody, and possession of the said Isaac Willett and against the will of the said Isaac Willett and the crew and mar- iners assisting the said Isaac Willelt in the navigation of the said steam vessel, piratically and feloniously did steal, take, and run away with, they the said David Collins, James McKinney and Linus Seely, being passengers on board of the said steam vessel and in and on board tho same on tho high seas aforesaid, against the laws of the United States of America and the Statutes of the United Kingdom of Great Britain and Ireland. K. RETURN .OF THE SHERJFF TO THE ORDER OF HABEAS COIiI'VS. SupRSMB Court. I, James A. Harding, Sheriff of the City and County of Saint John, having charge of the gaol of the said City and County, do hereby certify that David Collins, DAVID COLLINS, ET AL. H Junra McKinnity, and Mnua Bealy, named in the annexed order were in the gaol of the City and County of Saint John, for lafo keening, under a warrant from M. T. Gilbert, Eiq., Polico Mngistratp, and Justice of tlio Peace, from the following datoa: — Juiiios McKinnoy, from thu 20th day of December IumI, David Collin*, from the S7th day of Docombor lust, and liinus Hecly, from the iirnt day of January last past, except when ordered for examination by the Hnid II. T. Gilbert, Police Vlugistratc, und.Justice uf the Peace, up to 1 1 o'clockor thereabouts, on the morning of the 24th )oper of the Gaol thereof; you the said Constabli. shall convey David Collins,of the City of Suint John, Labourer, James iMcKinney, of the snmo place. Labourer, and Linus Seoly, of tho same place. Labourer, charged before me, Humphrey T. Gilbert, Esq., Police iMagistrate for the City of Saint John, and one uf Her Majesty's JuHticos of the Peace for the City and County of Saint John, acting under warrant under the hand and seal of His Excellency the Honorable Arthur Hamilton Gordon, C. M. (t , Lieutenant Governor, and Commander in Chief of the Province of New Brunswick, bearing date the twenty-fourth day of December, in the Year of Our Lord One Thousand Eight Hundred and Sixty-three, and made and issued in pursuance of the Act of Fmperittl Parliament intituled, "An Act forgiving effect to a Treaty between Her Majesty and the United States of America, for the apprehension of certain of- fenders," and in pursuance of and in accordance with the said Treaty and Act, a Kequistion having been made to Hia Excellency the Honorable .\rthur Hamilton Gordon, C. M. G., Lieutenant Governor, and Commander in Chief of the Province of New Brunswick, on behalf of the said United States of America, by James Q. Howard, Consul of the said United States, at the City of Saint John, in the Pro- vince of New Brunswick, slating that John C. Braine, H. C. Brooke, DaTid Col. lins, John Parker Locke. Robert Cliilbrd, Linus Seely, George Uobinson, Gilbrctt Cox, Robert Cox, IL A. Parr, and James McKinney, charge rica, on the seventh day of December, inst., are, or some of them are now in the City of Saint John, within this Province, and requesting that the said John C. Braine, H. C. Brooks, David Collins, John Parker Locke, Robert Clifford, Linus Seely, George Robinson, Gilbrctt Cox, Robert Cox, H. A. Parr, and James McKin- ney, may be delivered up to Justice according to the Proviiuons of the said Treaty ; such warrant directed to all and every the Justices of the Peace and officers of Justice within the Province of New Brunswick, and is as follows : — Here His Excellency's Warrant is inserted. Vide Appendix D. And whereas on the receipt of the said warrant by me and acting under and by virtue thereof and in pursuance of the said Act of Parliament, I did examine Isaac Willett under oath touching the truth of the said charges set forth in the said warrant and upon the evidence of the said Isaac Willett in pursuance of the said Act of Parliament, I did on the 25th day of December last, issue my warrant under my hand and seal for the apprehension of the said persons upon the charges aforesaid in the words following: — (Here is inserted warrant of apprehension, vide Appendix F.) And David Collins, James McKinney, and Linus Seely, three of the persons in the said warrant, having been found within my jurisdiction and having been arrest- ed and brought before me, under and by virtue of the said warrant, and I having proceeded to the investigation of the charge of piracy charged against the said named persons so brought before me and upon the examination of the witnesses under oath touching the offence of piracy charged against the parties so brought before me, and upon the evidence before me under oath, I do hereby under the Act of the Imperial Parliament command you the said Constable or Peace Officers to convey the said David Collins, James McKinney, and Linus SecIy, to the com- mon gaol of the City and County of Saint John and deliver each of them to the keeper thereof upon the charge of piracy, for that they having on the seventh day •p THR OnB8APKAKR OASI. is-i"z =ri«: J.'i of December in the jeer of our Lord one thousand eight hundred end eixtT-thre* en the hifh mm about twenty mllee north north eait of Cap* Cod in the United States of America, with force and arms, maliciouslv, wilfully, feloniously, and piratically made an assault upon the said Isauc Willelt and others, the mariners then on board and in charge and command of the steamboat or vessel named the Chesapeake, the said vessel being a vessel belonging to the Unitec* States of Am- erica tnd registered in the United States, according to the laws of such States and belonging to one Henry B. Cromwell, a citixen of the United Slates of America, and being of the value of sixty thouNand dollars of lawful money of Now Bruns* wick, and having on board a cargo of the valuu of eighty thouNMd dollars of like lawful money, and the said vessel being then on a voyage IVom the port of New York in the United States of America, to the port of Portland in the said United States of America, and having then and there piratically, feloniously, wilfully, and mnliciously put the said Isaac Willett and otnern, the crow of the said vessel, in fear and danger of their lives on the high scss aforesaid, and having then and there maliciously, wilfully, feloniously, and piratically taken possession of the said vessel and the cargo thereof, and with having then and there feloniously stolen and taken the said vessel and cargo upon the high seas aforesaid, there to remain until delivered pursuant to the requisition as aforesaid. And you the said keeper shall receive and safoly keep each of them upon the said charge until delivered pursuant to such requinition ns aforesaid. , i . Given under iiiy hand and seal at the City uf Mnint John, in the City and ,.,M County of Suint John, this twenty>fifth day of February, in (he year • ! I uibjt-ji of our Lord one thousand eight hundred and sixty-four. ' • (Signed) H. T. Oimar, a Juitiee of the Peaet [l. ••] ''*■;' for the City and County of St. John ' ""■ ' \ '•" '^ ir.JJ^n i,w. g„j Police MagUtrate for $ttid City. And this is the cause of the detaining the said David Collins, James McKinney, and Linua Seely, whose bodies I have ready. Jamks A. Haruin«, Sheriff of the City ttth February, 1864. and County of Saint John i;tj/ Uii-'A'»^ >'>'i 1 fin- ■„' < ■'t if:;' .i; n't .' • * t'l !■■<• Il', ..■> :■ ■( '.' ■'.;.(, li ^■.•v'•''.' ^.-i « )■'■ i. \*\ .•\ •!wi ; .'. >fv ' ,('■>'• »^.M ;i *?■<']' xii ./. ill'--. ,.!' ■ ■< <.<■_ ■ ,«• ;i!:»i{7i!ji I I'Uij .il. - ■ ' o.i', ly t» .-.. / /•; >ija-v.' naiiijtl -■ ■■' - 'f • ^. - -. . ERRATA. Fr«rac«. 16th line, for "is" read " are." " lOthVme, dek "thiit." Page 6, 20th lir)e, (fele " and." •• 8, 26th Una, for " Provincial " read " Imperial.*' " 9, 36th line, for " am " road " was." " 13, 48th line, for " nt " read " a." " 16, 46th line,