IMAGE EVALUATION TEST TARGET (MT-S) fe /. A Vi H 1.0 1.25 ■so ■'^= ^ 1^ 2.5 1^ 22 2.0 1118 U ill 1.6 VQ vQ C^.^*^ >' / ^> o^. /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 m. ■<^ iV \ :\ ^9 following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, ii est filmd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. errata I to t ) pelure, on d D 32X 1 2 3 1 2 3 4 5 6 THE ST. ALBANS RAID oj:, INVESTIGATION INTO THE CHARGES AGAINST LIEUT. BENNETT H. YOUNG AND COMMAND, FOR THEIR ACTS AT ST. ALBANS, VT., On thk 19th October, 1864. BEINO A COMPLETE AND AUTHENTIC REPORT OF ,ALL THE PllO- CEEDINGS ON THE DEMAND OP THE UNITED STATES FOR THEIR EXTRADITION, UNDER THE ASHl^URTON TREATY. r.EFOnE JUDGE COURSOL, J.S.P., AXO THE HON. MR. JUSTICE SMITH, J.S.C. ki Q With thb ARotTME>fTS of Cocxsel axd the Opixioxs op thk Judges rkvisbd BY THEMSELVES. COMPILED BY L. N. BENJAMIN, B.C.L. ¥ PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET. 1865. i^*.j u^^MtuMm^ti a ci a in be en ap of th r K E F A C E. The magnitude of the interests involved in the St. Albans Case, and the importance of the questions -which arose during its dis- cussion, have appeared to me such as to justify the publication of a complete report of the proceedings ; and in preparing it accord- ingly, I have been indebted to the eminent Counsel engaged on both sides for such a revision of the reports of their arguments, as enables me to be certain of their substantial correctness. Before going to press, documents arrived from England Avhich appeared to sustain the correctness of two of the most important of the judgments rendered in the case. I have, therefore, added them as an appendix. L. N. B. Montreal, 17th April, 1865. IB R R A T U M . Pflge ], line 8, instenil of " with felony," read " with suspicion of felony." )f felony. ST. ATJUN'S RAID. Before Mr. Justice Badoley. Mr. Kerr applied for a writ of habeas corpus to bring before bis Honor, William 11. Hutchinson, alleged to be then in gaol upon the Ibllowin;!; commitment : — PROVLN'CE OF CANADA, District of Montreal. POLICE OFFICE. 1^' To the keeper of the Common Gaol of the said District, greeting (- -, Whereas W. H. Hutchinson of the Parish of Montreal, in L '"' "-^ the said District, laborer, stands charged upon oath with felony. These are therefore to authorize and command you to receive into your custody the body of the said W. II. Hutchinson, and him safely keep for examination. Given under my hand and seal at Montreal, this twenty-seventh day of October, one thousand eight hundred and sixty-four, in the twenty-eighth year of Her Majesty's reign. (Signed) J. P. SEXTON, Recorder. And also for a writ of certiorari to bring up the information upon which the commitment issued, which was sworn to be of the follow- ing purport : PROVINCE OF CAN >' , , j District of Montreal, ti'. of Montreal. The information and complaint of Guillaume Lamothe, of the city of Montreal, in the District of Montreal, Esquire, chief of police, taken upon oath, this twenty-seventh day of October, one thousand eight hundred and sixty-four, at the Police Office, in the city of Montreal, before the undersigned Recorder in and for the city of Montreal, who saith: Upon the twenty-fourth day of October instant, at the said city of Montreal, between the hours of six and eight of the clock in the afternoon, I arrested a person, who has since given his name as W. II. Hutchinson, upon suspicion of his having com- mitted a felony at St. Albans, in the State of Vermont, one of the United States of America. Upon the person of the said Hutchin- A POLICE OFFICE. 1; . itii o K'H. ".vho is now a pri^^oncr in my ctistody, I found after liis said arrest ten thousand dollars of the Franklin County bank hills, said bank bcin;^ situate in .St. Albans, in the State of Vermont, cnc 'if the United States (^f Ameriea, and two loaded revolvers. And 1 have reason to believe that the said sum of ten thousand dollars was feloniously stolen by the said Jfutehinson, or by others with whom he was aetin^ in eoncert. ^Vherefore I prav for justiee, and have signed GUILLAUME LAMOTHE, Chief of Toliee. i!'w;.'.; before uic at Montreal, this ) 27thOetober, 1S(J4. j J. P. Sexton, Recorder. JJ-. Kerr o;'eiH'd two jii'im'ijial gi'ounds of oljection to the com- iui::neat. 1. That it contained no charge of any offence for Avhich the ]''ri.-^oner could be committeil ; '■• suspicion of felony" not being sucli a cliargc. 12. That the warrant of connnitnient contained no limit as to the hich the ]iris'>ner was to remain in confinement : tin ;e ,1 u'mg wiucli though the time for which he could be remanded was expressly limited by the statute ; and tliough the text writers laid it down as a rule that the warrant should declare the limit ; and though the :')rm contained in the schedule to the statute, and the forms irivcii in the books were all so framed as to limit the time. Mi'. Abbott, Q. C'., followed on the same side. The fact tluit the information contained no statement that war- ranted a suspicion of felony under the law of Canada, was also insisted on. Mr.JolinHun, (I. C, on behalf of tlie Crown, 0})poscd the appli- caaon, on the ground that the warrant was sufficient, and that the information disclosed a sufficient ground for the imprisonment, and further on the ground that being remanded for examuiation only the proceedings against the prisoner should not be interfered with. Mr. Devlin, on behalf of the U. S. authorities, followed on the Slime side. His Honor took time to consider ; and at 2 P. INI. the same day, rendered the following judgment : — The warrant of commitment charges the pi-isoner with suspieioti of felony^ and orders his commitment j^'or examination. Objections are made to both the generality of the charge and the unlimited remand. Now it is not necessary that the offence should be described with the nicety and technical precision of an indictment, but the prisoner should be charged Avith some legally defined and well known Ills said ik \n\\», onnont, •volvers. housand ly others IE, •olicc. the com- vhich the lot being as to the finement : expressly t down as id though the forms [that war- ^Yas also |thc appli- that the Lent, and Ition only i-ed with. Id on the ime day, tpicion of Itions are 1 remand. >ed with I prisoner knoAvn i^ ufl'cucc for which he woiikl he salijcctiMl to criiaiiiul proceedings oither l)y indictment or otherwise, and tliat s[)ccific offence cannot he inchi(hMl under a general term which compciuliously covers a "•reat variety of criminal olVcnces. The term felony includes a numhcr of crimes ranging hctwcen treason and larceny : and hence it is not sufficient sim[)ly to designate the otfence hy the name of the class of offences to which the magistrate may tind or judge it to belong *, and it is undoubtedly the received opinion tliat a com- mitment for felony in general without showing the species is not food. The reason given for reipiiring certainty is plain enough, to enable the judge applied to for the habeas corpun^ Avhich is in the nature of a writ of error, to determine whetlier the connnitment is erroneous or not, otherwise tlic power of Courts and Judges under the law would be seriously abridged. A commitment, therefore, in the a1>sence of any statutory provisions ])rescri1)ing its forms and contents docs not sufficiently state the offence by sim[)ly designa- ting it by the class of crimes to wbicli the committing magistrate may consider it to belong ; it should state the facts charged to con- stitute the offence with sufficient particularity to enable the Court or Judge on Habeas Corpus, to determine what particular crime is charged agahist the prisoner : if commitment fail to do this, the prisoner ought to be discharged from it : this is the law and the decision is explained and enforced by Mr. Kurd an American jurist, Avho has treated, ex professo, the subject of the writ oi' habeas corpus. Surely if the speciality of the offence is so strongly re- quired in commitments for actual offences, hoAV much more necessary and essential is it for offences merely suspected, as in this case, f^uspioion of felony. The charge itself is strangely in- complete and untechnical, being not alone general in its expression, but without any fact to show its ap})lication in any manner to the prisoner ; in this respect the commitment is clearly erroneous. The second objection has reference to the generality of the order of detention ; the prisoner is remanded for examination, but with- out stating when or where. It is true that the magistrate may jemand for examination from time to time, at his discretion, but that discretion is not unlimited, it is a legal discretion for the time and times provided for by the statute : that time, therefore should have been stated. The justice, as stated in the books, should not fail to state in his warrant of remand the time and place at which the prisoner is again to be brought up, and our Provincial Statute plainly enough provides for this and assists the magistrate with a form in this particular, leaving blanks for time and place, which the magistrate shall fill up. It is useless to say more upon this |)alpable error. These two objections are formal against the face of the commit- t. 1 ■ r.i' H mont, and, to my mind, rciidor it l)a crime committed in this Province, it wants every legal in- gredient to give it effect ; taken as the information of a crime committed in the United States, it is ])lainly one for which the committing magistrate could have no jurisdiction, being done in a I'oreign country, and, moreover, not in the category of offences for which extradition is allowed under the treaty. It has been urged that the allowance of the habeas corpus will interfere with the course of justice. The writ, however, cannot be promoted or impeded on that account, if there is no legal commit- ment to detain the })risoner, as in this case. Even in the course of the examination of a prisoner before a magistrate, where there is a special charge C7i re/jle, it is ({uite competent for a magistrate to admit the prisoner to bail in the meantime ; and this does not pre- vent the continuance of the examination, which would go on, although the prisoner is at large under his bail bonds ; or the magistrate may even prevent him to go at large without bail, and still the examination would not be interfered with. Now, this statute alloAving the remand, does not certainly interfere with the allowance of the habeas corpus, and as ceri ' Jy, upon a defective commitment like the jiresent, the allowance of the writ cannot be legally refused. Writ granted returnable instanter. The following is the gaoler's return to the writ of habeas corpus : [ive con- course nitinents idor the 1 beyond 1 a^iiiirjHt with the it by the bnn.s the sted the Albans, c. 'ihis »t justify : did not )rmation. tate some tter over vhicli the tter must 3. None ! informa- ' le;i;al in- a crime vhich the one in a "enccri for rjxis will numot be commit- Icoursc of there is listratc to not pre- go on, ; or the [bail, and Tow, this witli the lleiectivc ttmot be habeas I'llOVlNCK OF CA\A[)A, I District of Monlreiil. i I, Louirt I*ayette, keeper of ller Majesty's Common (Jaol, in the city and District of Montreal, in the Province of Canada aforesaid, do hereby certify and return to our S()verei;:;n Lady the <^ucen that befor(! the coming of the annexed writ to me directed, to wit, on the 27th and 2!>th days of October, one thousand ei;j;ht hundred and sixty-four, the body of William I[. Hutchinson therein named, was committed into the said (iaol of our said Lady tlu' Queen, luider my custody, by virtue of two warrants under the hand and seal of J. J*. Sexton, Uccorder of the city of Montreal, and Charles J. Coursol, Ivsipiire, .Ju District of Montreal. S To the keeper of the Common (iaol of the said District, ^^rcet- , -i ing : Whereas William IL Hutchinson, of the parish of [fi.h.J ^i,„jfj.(^,^]^ in the said District, lal»orer, stands charged upon oath with suspicion of felony : These are, therefore, to authorize and conunand you to receive into your custody the body of the said William U. U\itchinson and him safely keep for exanuniition. Given under my hand and seal at Montreal, this twenty-seventh day of October, one thousand ei«^ht hundred and sixty-four, in the twenty-eif'hth vear of Her Majesty's reign. (Signed) J. P. SEXTON, Kecorder. PROVIN'^'H OF CANADA, ) District of Mmtieul. ^ POLICE OFFICE. To all or any of the Constables or other peace ofiicers in the P -| said District of Montreal, and to the keeper of the Common ■- ' ■-' Gaol of the said city of Montreal, in the said District of Montreal, greeting: Whereas William II. Hutchinson, late of the town of St. Albans, in the State of A'crmont, one of the United States of America, laborer, now in the city of Montreal, was this day charged before me, Charles Joseph Coursol, Es(piire, Judge of the Sessions of the Peace, in and for the city of Montreal, on oath of Marcus Wells Beardsley and others, for that he the said William 11. Hutchinson on the nineteenth day of October instant, at the town of St. Albans, in the State of A'ermont, one of the United States of America, being then and there armed with a certahi offen- sive weapon and instrument, to wit, a [)istol, commonly called a revolver, loaded with powder and balls, and capped, in and upon one Marcus Wells Beardsley feloniously did make an assault, and & ^K;H '!': ^t^ 6 lilm, the said Marcus Wells licardsloy, in bodily fear and danger of his life, then and there did put, and a certain sum of money, to wit, to tlie amount of seventy-six thousand dollars current money of the said United States of America, and of the value of seventy- six thousand dollars, current money aforesaid, of the moneys and property of the Franklin County bank, at St. Albans aforesaid, a body corporate, constituted and recognized by the laws of the said State of ^^ermont, from the person, custody and possession and against the will of the said Marcus Wells Beardsley, and in his presence then and there feloniously and violently did steal, take and carry favpy, against tlie form of the statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of said State. These are therefore, to command you the said Constable or Peace Officers or any of you, to take the said William TI, llutcliinson and him safely convey to the Common Gaol at the citv of Montreal aforesaid, and there deliver him to the keeper thereof, together with this precept ; and I do hereby com- mand you the said keeper of the said Common Gaol to receive the said William K. Ilutchins ni into your custody in the said Common Gaol, and there safely to keep him until he shall be brought before me for the purpose of an examination upon oath of any person or persons toucliing the truth of the said charge, in confoi-mity with the provision of the Statutes made to give effect to the Treaty between Her Majesty the Queen ant" the pribjncr, from the warrant issued by the Judge of the sessions of the peace. The prisoner remains in jail in the meantime. COURT OF QUEEN'S BEXCIT, In Chambers. Motion of Writ of (Before Justices Aylwin, Drummon'd.) Habeas Corpus." MONDELKT ar Wednesday, Nov. 2nd, 1804. This morning the Court was crowded, to hear the argument and decision on motions for a writ of habeas corpus in behalf of the St, Albans raiders, at present imprisoned in the jNIontreal jail. Hon. Mr. Abbott, Q. C. ; Mr. Laflammc, Q. C. ; and Mr. Kerr appeared for the prisoners. Mr. Develin, representing the United States Government, associated with Hon. Mr. Edmonds, of Ver- mont. Messrs. Johnson, Q. C, and Carter, Q. C, appeared for the Crown. Messrs. E A. Sowles and Edson were present in the interest of the St. Albans banks robbed. Mr. Kerr presented a petition for a writ of habeas corpus in behalf of Samuel Eugene Lackey and thirteen other prisoner? concerned in the St. Albans raid. Mr. Justice Mondelet. — Are all charged with the same offences ? Mr. Kerr. — Yes. Judge Mondelet. — With specific offences ? Mr. Kerr — One offence is murder committed within the jiu-isdic- tion of the United States, and the other robbery. The principle? wdiich would apply to those commitments are general and applicable to the whole. Mr Carter said he was clerk of the crown, and had a right to speak on the present occasion, lie would beg to inform the Court that this was not a final commitment, but one for examination, and that the prisoners were now before the Judge of the sessions, who was about going on with the examination of witnesses and other requisite procedings. The argument for a writ of habeas corpus was actually delapng the argument about to take place before the Jiidge of tlic sessions. Judge Aylwin — Asked for the petition, which was handed to and read by him. He then asked, was there any final commitment ? Mr. Kerr. — None. Judge Aylwin. — That is the end of the matter. Mr. Kerr asked to be heard. ■^■^^mmmmmimmfiM li; i •! I'-V \: siiii m 12 Judges A/jlwin aud D/'ummonJ, though demurring to the propriety of such a course, before the prisoners were txamincd, permitted the Coiuisel for the latter to proceed. 3Ir. Abbott said the point they intended to bring before their Honors was not one relative to the crimes charged, but applied to an excessive jurisdiction in this commitment. If the magistrate exercised excessive jurisdiction, even in a preliminary commitment, the Court would take notice of it. The statute authorizes a magis- trate, under certain circumstances, to commit a prisoner for exami- nation, for a limited period, in his discretion, not exceeding eight days. Of course, then, if a magistrate committed a prisoner, without reference to the statute, Avitliout limiting the time before examination, there was an exercise of excessive jurisdiction. Judge Mondelet asked if the learned gentleman had ever read or heard of a writ of habeas corpus being applied for while a pre- liminary investigation was [irocceding before the magistrate or any justice whatever, in order to prevent such examination being com- pleted. Suppose the prisoners were discharged at this stage, what security would tlicro be for the community at large. He did not allude to these prisoners in particular, as their case nmst come before the Court. The Judges were independent of the executive and every one else, and justice could and would be done the prison- ers whatever the consequences. But, at the same time, the Court must take care and act according to the law, both as to the prisoners and foreigners interested. Mr. Abbott said that the law had contemplated every case, including that of a person brought before a magistrate against whom there was not sufficient evidence at tlie moment to warrant a com- mitment for trial. The defence addmitted that if the prisoners in this case were properly committed for examination, they could not interfere. The mode in which the law had provided for that exam- ination was this : (Cap. 102, sec. 42, Con. Stat. Canada,) " If from the absence of the witnesses, or from any other reasonable cause, it becomes necessary, or advisable to defer the examination, or further examination of witnesses for any time, the justice or justices before whom the accused appears, or has been brought up upon his or their warrant, may, from time to time, remand the party accused, for such time as by such justice or justices, in their dis- cretion, may be deemed reasonable, not exceeding eight days at any one time, to the common jail or house of correction," etc. If the power was not conferred by this clause, it was conferred by no clause at all, so the law very Avisely gives to one justice the right of remanding prisoners for a specified period, but not to keep them there for ever. The imprisonment was not to exceed eight days at any one time. These prisoners were committed for examination several $ i t 13 read days ago, and had not yet been brouglit up for examination. They may be confined in this jail for the next twenty years, under the ))resent warrant. The magistrate had not exercised his discretion as to the time these prisoners might bekept in jail. Instead of saying to the jailer, " You shall detain them for eight days, and then bring them up," they were committed for an indefinite period. They might have been brought up in the interval that had elapsed since their commitment, but he had no right to commit them for a longer period than eight days. Judge Aylwin. — The commitment bears date the 27th of October. Judge Drummond. — The eight days have not expired. The magistrate remanded from day to day in general, but the party ag- grieved, when the eight days expired, if not previously brought up, might appear and say that the magistrate had exceeded his power. If the counsel were in that position he coidd understand it. Mr. Abbott. — Of course, I Avoidd be in a much stronger position. To be sure it is an elementary principle that the warrant of com- mitment must show the jarisdiction on the face of it ; ])ut this is not a warrant of remand in conformity with the statute. By that same waiTant, which sends a prisoner to confinement, the jailer is ordered to bring him back again on some day specified in the commitment. The intention of the law is plain, that by the warrant which commits him, the time of his discharge, under certain circumstances, is to be settled. Judge Mondelet. — We know not how these prisoners are before the Court. Are they under examination under the provision of the Ashburton Treaty ? Mr. Abbott.— ^0. Judge Mondelet. — Suppose they are to be dealt with under the Ashburton Treaty, is the Judge of the sessions, in his mode of action, to be strictly and exclusively governed by this statute ? Mr. Abbott. — In my opinion, the law observed in this case does not apply to the Ashburton Treaty — if we were called on to argue Avhetlier a justice of the peace, who commits these prisoners, is bound to follow the terms of this act, Ave might urge that it is the terms of our statute which should regulate the conduct of such justices. The Court Avill perceive that by the statute passed to enable Judges to administer the Ashburton Treaty, there is no power given to remand at all. Judge Drummond. — Was there no power to remand before that statute Avas passed ? Mr, Abbott. — Suppose it to be a necessary consequence that there should be a remand, is it not to be confined to some period ? Could the magistrate Avho arrests, leaving this statute altogether out of the (luestion, under the act passed to facilitate the execution of the Ash- ^ I't'i K ii; Tii^^f^^i^^i'wmMymdiemtmiii*:. U i'i 1(1 l.urtun IVcaty, coiniuit the prisoners for an unlimited time, or as ]on<^ us he pleases? •Juihjc DnuiDiiond. — If the magistrate docs not name the day in ■vshich the prisoners are to be brought up, does that de})rivc him of Ins jurisdiction ? Mr. Abbott. — 1 can satisfy your Honors that under the statute j^assed to facilitate the execution of the Ashburton Treaty, this Court has not the power to remand. I maintain this is a power beyond the magisterial jurisdiction. Judge 3Iondeht. — If that magistrate exceeds his jurisdiction, there must be a remedy ; if ho commits an act of oppression he must be restrained. But the power of remanding does exist, even if it does not appear in the statute ; such a power is essential, and if the magistrate exceed his authority he must be brought to account for it. But there can be no excess of jurisdiction. Mr. Abbott. — What I said before and repeat is — that a magistrate lias no power to commit a man for an unlimited time. If a warrant commits a prisoner for a longer period than the law allows, he is entitled at once, without waiting for the expiration of his term, to come before the Court and claim his discharge, in consequence of an illegal commitment. Such a case would be analagous to the present one. If there is any right in a magistrate to remand at all, it must be exercised in a reasonable manner ; and he must state what extent of jurisdiction he assumes to himself. If the act be done under the statute, he cannot remand for a longer period than the time provided for by the statute. I merely wish prima facie to show" that the case deserves consideration : and I can produce authorities. 3Ir. Kerr. — The first point to be determined is, whether under any circumstances connected with a remand for further examination a writ can issue for a habeas corpus or not. I defy the learned counsel on the other side to show a case where a warrant of com- mitment being invalid and bad, the right to apply for a writ of habeas corpus did not exist. I admit that when a warrant for com- mitment or examhiation is good on its face, no writ ofhaheas corpus can issue ; but when such a warrant is bad on its face, a writ of habeas corpus can issue. I would ask is there no difference between remanding prisoners for an indefinite length of time, and bringing them up at a stated time, as laid down in the statute ? If we are precluded from making this allegation we shall be told that prisoners under examination have no right to a writ oi habeas corpus. And would not a motion for habeas corpus be as applicable three years hence as it is to-day, if the crown came forward and said, " These men are still under examination ? " These men have a right to the habeas corpus whether under examination or not, if the warrant lo % weea ging m are ners ould ncc men the rant for tlicii- commitincut be iini)erfcctly drawn up, and if it had hocn shown that the ma^^istrate exceeded his jurisdiction. Jitdjit A//lwin said the matter was very easily disposed of. An apphcation had been made for a habeas corpus, in order that a writ should issue on two commitments. Now, each of these commit- ments was perfectly sufficient, and the defence would take nothing by their petition. Jud'ji' Monddd said that this decision of the Court was founded on elementary principles, which admitted of no doubt. It was es- sential, in common law, that the Judge of the sessions, who was invested with jurisdiction correctly exercised, should have the power of remanding a prisoner at his own discretion. These men, for whom application was made, must and shall be protected if they have a right to it, and the community must and shall be protected according to law. The whole matter shall be conducted according to law, and not according to prejudice and popular clamor. The Judges will see that the law is carried out, whether the parties accused be or be not liberated. In this country the Judges have nothing to fear cither from crown or people, and will do their duty xifl tlie law directs. Judge Drummond agreed with the decision of the other two learned Judges. He observed that Messrs. Abbott and Kerr had argued the case like expert lawyers, as they were, and without the slightest design of exciting prejudice. The Judges had to perform a solemn duty, and he hoped that all knew they would do it without regard to party or prejudice. He agreed with his confreres because he believed there had been nothing irregular in the proceedings, though the most regular course would certainly have been to fix a day on which the accused should be brought up. Judge Aylivin — The order of the Court is, that the defence take nothing by their petition. 'Vi\ % !l il n t I i 10 PiioviNCK OF Canada, \ To all or any of the Constables, or other PiHtrict of Iberoille. \ Peace Oflicers, in the District of Iltcrville : Whereas, Samuel Ku^ene Lackey, S(inire Turner Tcavis, Ala- manda Po])C Bruce, Charles Moore Swa^or, (ieor<;e Scott, Bennett II. Youne given to the official act« of said Oilman. In testimony whereof I have hereunto affixed the seal of the County Court of the County of Frank- lin aforesaid, and subscribed my name, officially, I Seal of CC] at St. Albans, in said County of Franklin, this twenty-first day of October, in the year of our Lord one thousand eight hundred and sixty- four. [Stamp 5 cts.] JOSEPH II. BRAINEllD, Clerk. STATE OF VERMONT, | I, Asa Owen Aldis, of St. Albans, in the Fninklin County, ss. \ County of Franklin and State of Vermont, one of the .Judges of the Supreme Court of the State of Vermont, and chief .Judge of the County Court of the County of Franklin and State of Vermont, hereby certify that Jose[)h II. Brainerd, whose signature is appended and subscribed to the above certificate, is the clerk of the said County Court of the County of Franklin afore- said ; that I am well aciiuainted with and know the ignature of the said Brainerd, and the seal of the said County Court ; that the signature subscribed to the above certificate is the genuine signa- ture of the said Joseph II. Brainerd, and the seal affixed to the said certificate is the seal of the said County Court, of the County of Franklin aforesaid ; that the said Court is a common law Court of record ; that the said Brainerd as clerk of the said County Court, has the custody of the record of all commissions issued to Justices of the Peace within and for the County of F'ranklin, and is the proper officer by law to certify as to the election, qualification, and authority of Justices of the Peace, acting within and for the county of Franklin aforesaid. In testimony whereof I have hereunto set my hand, at St. Albans, in the County of Franklin aforesaid, this twenty-first day of October, in the year of our Lord one thousand eight hundred and sixty-four. ASA OWEN ALDIS, Jadije of the Supreme Court of the State of Vermont, and Chief Judije of the County Court of the [5 cent stamp.] Count// of Franklin in the State of Vermont. UNITED STATES OF AMERICA, \ J, John Gregory Smith, governor Stat«! op Vermont, > ojf said State of Vermont, do here- Executive Department. ) by certify that the foregoing docu- ment is authenticated according to the laws of said Siate, and of the United States ; that the signatures of the respective officers attatched to said certificates of authentication are genuine ; and (■■ ■ rOWJKVW^*. i " fca.t«B*H«»« aj... KL'n Hill 20 that said officers respectively hold and exercise the offices which they in and by said certificates purport to hold and exercise ; and that the seal of the said County Court of the aforesaid County of FrankUn thereon, is genuine, and that full faith and credit ought to be given to said documents and certificates. In witness whereof I have caused the seal of said State to be hereto attached, and have affixed [Seal of State of my signature hereto, at Montpelier, this thirty- A^ermont.] first day of October, in the year of our Lord one thousand eight hundred and sixty-four. [5 cent stamp.] J. GREGORY SMITH. By His Excellency the Governor, Attest, G. W. Bailey, Jun., Secretary of State. Endorsed. STATE OF VERMONT, versus Squire Turner Tea vis, Alamanda Pope Bruce, Marcus Spurr, Charles Moore Swager, William H. Hutchinson, Bennett H. Young, George Scott, Filed, 9th Nov., 1864. C.J.C, J.S.P Caleb McDowall Wallace, James Alexander Doty, Samuel Simpson Gregg, Dudley Moore, Samuel Eugene Lackey. Thomas Bronsdon Collins. A. I EVIDEK^CE TAKEN IN THE ST. ALBAN'S BANK CASE. PROVINCE OF CANADA, District of Montreal. POLICE COURT. The examination of Cyrus Newton Bishop, of the town of St, Albans, in the State of Vermont, one of the United States of America, teller of the St. Albans bank, now in the city of Mont- real, taken on oath this seventh day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house, in the city of Montreal, in the Dis- trict of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex- ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen, and the United States of America, and our Statutes in that behalf made, with having committed within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen., and the United States of America, to wit: — For that they» the said Samuel Eugene Lackey, Squire Turner Teavis, Ala- manda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gr^^o-g, Dudley Moore, Tho- mas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of the United States of America, being then and tliere armed with certain often- sive weapons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop, feloniously did make an assault and him the said Cyrus Newton Bishop in bodily fear and in danger of his life, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars ciu'rent money aforesaid, of the moneys n .it^ ■■,H 'r 22 m ami property of the bank of St. Albans, a body corporate, consti- tuted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and possession, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. The deponent Cyrus Newton Bishop on his oath saith — On the nineteenth day of October last past, I was fulfilling the duties of teller in a banking institution, known as the St. Albans bank, in the town of St. Albans aforesaid, during which day, and between the hours of three and four of the clock, in the afternoon, two persons whom I had not known before, but whom I have since identified and whom I now sec in the Court, and point out as two of the prisoners under examination, lliese two persons are now known to me by the names of Thomas Brousdon Collins and Marcus Spurr, such being the names to which they answer. At the time the said Collins and Spurr entered the said bank upon the said nineteenth d:iy of October last, I was behind the counter of said St. Albans bank. They immediately advanced towards the counter behind which I was, and each of them pointed a revolver of a large size to my breast, I being then about three feet distant from them. Seeing the revolvers thus presented towards me, I sprang from behind the counter to the director's room which ■was near at hand, and attempted to close the door, but the said Collins and Spurr having followed me, forced the door open, and in doing so, I was struck on the forehead, and bruised, leaving a mark which Avas visible for some days. After having thus forced open the door, one of the prisoners, the said Thomas Bronsdon Collins, laid hold of me with one hand by the collar of my coat, and with the other presented a revolver to my head, so near that it almost touched me. The other prisoner, Marcus Spurr, also pre- sented a revolver to my head, at the same moment, both of them stating that if I made any further resistance or gave any further alarm , they would blow my brains out. I asked them what the programme was, and they answered that they were Confederate soldiers detailed from General Early's army to come north, and to rob and plunder as our soldiers were doing in the Shenandoah valley. They then asked me where our gold was, to which I answered we had none. They next asked me if we had any silver, and I told them we had. At this moment I observed that three other persons had entered the bank ; they were and still are unknown to me. They joined the other two, and seemed to know each other, and acted in concert with each other. The leader of the gang then proceeded to admin- ister some kind of an oath to me. lie compelled me to raise up my it t'C- y 23 ri'ht hand, and called upon mo to solemnly swear that I would not tnve alarm or fire upon the Confederate soldiers ; that is about all I can rememl)er of the oath in question. There was also in the director's room of tho said bank at the time to which I have referred to, one Martin A. Seymour, a clerk of the said bank : revolvers were also presented at him in the director's room by some of the said five persons, who were then actintr in concert, and amongst whom were the said Collins and Spurr. They threatened him, and said that if he made any resistance and <^ave the alarm, they would blow his brains out also. After having thus threatened him, the oath of which I have before spoken, was administered to him and to me. Both of us were then detained as prisoners in the said room, two of the said five persons acting as guard over us, with a revolver in each hand: I was then ordered to show them the place in which tlio silver was kept, and I opened the safe in the said director's room where the said silver was kept. So soon as I did this, one of the five persons pulled out three bags of silver containing about fourteen hundred dollars altogether. One of the party then remarked that they could not carry the whole of it, upon which they tore open the bags, and took away therefrom about four hundred dollars of the silver they contained. Each of the said five persons took a share of the said silver. I observed that four of these per- sons had satchels made, I believe, of morocco, into which they put the said silver, as also into their pockets. During the time the silver was thus being taken, Mr. Seymour and myself had to look on, being threatened that if we offered any resistance, we would have our brains blown out. After having thus taken the silver, three of the party went into the banking room, in which there was a safe for keeping of the bank bills of the said bank, and for the safe keeping of other currency. Said Collins and Spurr were two of the three said persons ; the other two remained guarding the said Seymour and myself in the way I have already stated. From this latter safe, the said last mentioned three persons took and carried away a sum of money amounting as nearly as I can now state to between seventy and eighty thousand dollars current money of the said United States of America. About forty thousand dollars of this amount was composed of l)ank bills issued by the said St. Albans bank, about twenty-four thousand dollars in promissory notes of the said United States, commonly called and known as greenbacks. They also took from the said safe other sums of money composed of bank bills issued by different banks in other States of tho sfiid United States, but all of which was current money as aforesaid. I now see before me in Court, twenty- four packages of bank bills, and greenbacks which I recognize and identify as the property of the said St. Albans bank, and which forms a part of the sum of 4'i ■ ' \m L m ■ ■'! m V < I 24 money I have already stated was stolen from the said St. Albans bank, by the said five persons, amongst whom were the said Thomas Bronsdon Collins and Marcus Spurr, on tlie said nineteenth day of October last. The said packages of bills and greenbacks are tied each with a paper band, eighteen of the said packages are tied with paper bands, which I recognize and identify as having been put on the said packages before they were stolen as aforesaid. Three of the said packages have upon them the letters " B. B., cash," — the letters " B. B." representing the name of Bradley Barlow, and the word " cash" his occupation of cashier in the said bank. Fifteen of the packages now before me, are marked in pencilling by the said Martin A. Seymour, with the figures " 1000" pencilled on each, and thereby representing each package as containing one thousand dollars. Two of the said packages are pencilled by the saiy dollars in the promissory notes of the said United States of Am. -i' a, commonly called greenbacks, as forming a part of the money stolen from the said bank, on the 27 fy les nineteenth day of October last, and the property of the said hank. This last sum of money I identify by the paper bands around the packages in which it is contained, and also by the figures in pen- ciling which arc to be seen on the larger band which surrounded all the packages and name by the figures " 1000" which I recognize and identify as having been put there by myself; I also recognize upon two of the smaller paper bands which surround the smaller packages the handwriting of Abner Forbes, cashier of the Ver- mont Central llailroad, and upon one of the said bands, the said Abner Forbes has written in figures " 371," and in writing the word "Ilartland." I have a particular knowledge of this band, because it surrounded a sum of three hundred and seventy-one dollars, which was deposited in the said bank, before the robbery in question, by the said Forbes ; and this band so marked Avas afterwards taken from the said package of three hundred and seventy-one dollars, and put by me around a package of one hun- dred dollars, the same which I now recognize. The second smaller jiaper band I also identify by the figures " 140," and the Avords W. Hartford" written upon it, and which I recognize to be the hand-writing of the said Abnor Forbes, and which surrounded a package of one hundred and forty-nine dollars by him also deposited in the said bank, previous to the said robbery. After the said do posit, I used the said band to tie the package of bills which it now surrounds. I further recognize and identify fifteen other packages of money now produced by the said chief of police as forming a part of a larger sum stolen from the said St. Albans bank, on the said nine- teenth day of October last. The said packages contain altogether twenty-six hundred and ninety-five dollars in various denomhiation, some of which are promissory notes of the said United States, called greenbacks, and other the issues of different banks in the said States. I recognize this sum of money by the paper bands in which it is con- tained. I identify them because I have used them in the bank. I further identify two other packages of money now produced by the said chief of pohce, containing one, one thousand dollars, the other, nine hundred and eighty-four dollars, as forming a part of a larger sura stolen from the said St. Albans bank on the said nineteenth day of October last, and which is the property of the said bank. Upon one of this last named packages, I observe in pencilling the figures " 1000," and the letters " B. B." representing Bradley Barlow, cashier of the said bank. These figures and letters, were put there, by Martin A. Seymour, a clerk in the said bank. The other package I recognize by the paper band surrounding it. And I further say that, that other sums of money have been on the said nineteenth day of October last, stolen from the said bank, which I have not seen since the robbery in question. All the moneys Avhich 4 M 28 I have identified as having been stolen from the said hank, on tlic said nineteenth day of October last, were so stolen by tlic said five persons to wiiom I have previonsly referred, and among whom were Thomas Bronsdon Collins and Marcus Spurr, two of the prisoners now under examination, and identified, and pointed by me. The foregoing deposition having been read over in the presence of the persons so charged, the deponent declares the same to con- tain the truth and hath signed CYRUS NEWTON BISHOP. Sworn and acknowledged l)efore me at Montreal the 8th November, 18G4. ClIAS. J. COURSOL, J.S.P. The foregoing deposition having been made .and read in the presence and hearing of the prisoners so above charged, they are asked if they have any questions to put to the deponent. They declare they have, and the following evidence is taken in Cross- examination by Mr. Kerr the prisoners' counsel. I do not recollect that the persons who entered the bank in the first instance said anything to me previous to ray getting in the director's room. I was very much frightened when they pointed their revolvers at me. The first thing that I recollect of now that I asked him was, " What this meant," and what the pro- gramme was ? He then said that they were Confederate soldiers detailed from Early's army, to come north to rob and plunder, the same as our soldiers were doing in the Shenandoah valley. When they took hold of my person by the collar, they said that if I made any further resistance or gave any alarm, they would blow my brains out. I might have asked them to spare my life, some time during their presence there, but I cannot say positively that I did so. Fright and confusion conserpient thereon tended to confuse ray thoughts at first, still I recollect what took place at first ; I am certain tliat I detailed all the incidents correctly ; I may have overlooked some however ; I cannot swear that I did not ask them to spare my life. I understood, when they said that they w^ere Confederate soldiers, that they were soldiers from the South. North and South have been at war with each other for some years past, and are still so. Collins told me, after the silver was taken, that if their soldiers were not fired upon, they would not harm us. I don't remember the whole of the oath administered to me by Collins, because I did not stop to study it at that time. I was willing to do anything at that time to save my life. The initials " C. N. B.," upon the package of one thousand dollars greenbacks, were put by me at Stanbridge,, 29 in on or about the twenty-second day of October lust ; the figures "1,000" were also put by me there. I identified said packages at Stanbridge by the figures " 1,000 " in pencil on the paper band of the said parcel, put there by Martin A. Seymojir. I swear positively that those figu' are Martin A. Seymour. I iden- tified the package of nine Hundred dollars, solely by the paper bands enveloping the small packages, of which it is composed. I do not know that there is anything very peculiar about those bands. It is a common thing in banks to have bands of that kind round parcels of their notes. I recognize the package of nine hundred and eighty-four dollars, merely by the band upon the small i)ackage3 it contains, knowing that we had such money put up. The package of ninety-five dollars in greenbacks, of different denominations, included in the large package marked as containing two thousand six hundred and ninety-five dollars, were loose when I first saw them at Stanbridge, and the band was placed round them by me. The package of five one hundred dollars greenbacks, were also loose when I first saw them, and were banded by me in Stanbridge. There were no distinguishing marks upon the greenbacks so put up by me at Stanbridge, to show that they had been the property of the St. Albans bank, and I identified them because they were in with others upon Avhich there was special marks. I cannot identify the hundred dollar greenbacks in the package by any other mean, that he was in among others that were marked. When I came out of the bank, as mentioned in my examination-in-chief, the parties on horseback, who had fired pistols as I have mentioned, were at a distance of about one quarter of a mile from me. I cannot tell how many people there were passing the said band of men at the time I went on the side-walk. I cannot tell how many women and children I saw near them. I saw half-a-dozen near them. I cannot say that I saw them firing when I came on the foot-walk, but they were firing when I saw them in front of the bank. I saw them previous to leaving the bank, through the window. I did not see any person wounded by the shots fired by the party. I still swear that they were firing at the citizens, because I saw them pointing their pistols down to the citizens, and saw and heard them discharge their pistols. Perhaps two minutes elapsed between the time that the last two men left the bank and my going out. I saw the men on horseback firing as aforesaid, previous to the two men leaving the bank. The band had not left the town of St. Albans, when I came out on the foot-walk. I think that the town of St. Albans extends in a northerly direction more than one quarter of a mile from the St. Albans bank. I was in the director's room when the shots were fired, and from the place I stood I could see through the banking room into the street. ■I k m-- [■ M i' 1 ■> 80 On rc-oxaraination by Mr. Ritchie on the part of the prosecution the deponent saith : — When I said, upon my crosg-examuiation, that the parties were soldiers from the South, I meant to say that they claimed to be such. Immediately before the robbery of the bank, the bank was in possession of notes of the same kind and denomination as those referred to in my cross-examination, and notes of those descriptions were taken away from the bank by the parties I have spoken of. The prisoners counsel and the counsel for the prosecution having declared that they had no further question to put to the deponent and this deposition having been read in the presence of the said prisoners the deponent declares it contains the truth and hath signed CYRUS NEWTON BlSIIOr. Sworn, taken, and acknowledged on the day, month, and year here- inbefore mentioned before me. ClIAS. J. COURSOL, J.S.P. H 81 4'1;| PROVINCE OF CANAbA District of Montrcdl, OLICE OUKT man, E- tiiire, of the "flford -luHtico of the (ih( ! in tl>t^ year of our The examination of Henry Nelson VV Townaliip of Stanbri;2;c in the District of Peace taken on oath this third (hiy of Nov Lord one thousand ei^^ht hundred and sixty-four, at the Pohce Office in tlie Court House, in the city of Montreal, in the District of Montreal aforesaid, before the undersi^ied Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, 8([uirc Turner Teavis, Alamanda Pope Bruce, Cliarles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Si)urr, and William H. Hutchinson, "who are now charged before me, upon complaints made under oath before mc under the provisions of the Treaty between Her Majesty the Queen and the United States of America, and our Statutes in that 1)ehalf made, with having com- mitted within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex- ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of the United States of America, and within the jurisdiction of the said United States of America, being then and there armed with certain offensive weapons and instruments, to wit, pistols commonly called revolvers, loaded with powder and balls and capped, in and upon one Albert Sowles, feloniously did make an assault, and liim, the said Albert Sowles, in bodily fear, and in danger of liis life, did then and there put; and a certain sum of money, to Avit, to the amount of nine thou- sand dollars current money of the said United States of America, and of the value of nine thousand dollars current money afore- said ; also certain valuable securities, to wit, certain United States Treasury Notes to the amount and value of twenty-nine thou- sand six hundred and fifty dollars current money aforesaid ; certain promisory notes of the United States of America, bearing five per cent, interest, called five per cent, legal tenders, to the amount and value of fourteen thousand dollars ; and certain promisory notes of the said United States of America, called five per cent. '¥ '^ 82 compouiui interest noto^, to the anount and vuluo of one thousand dolUirs current money atbresau'., of the moneys and property of the First National Bank of St. Albans, at St. Albans aforesaid, — a body corporate, constituted and recognized by the laws of the said United States of America, — from the person, custody, and posses- ion, and against the will, of the said Albert Sowles, and in his presence, then and there, feloniously and violently, did steal, take, and carry away, against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. This deponent, Henri/ Ndnon Whitman ^ on his oath saith: — I recognize among the prisoners, now in Court, the following, naming themselves respectively, — Samuel Eugene Lackey, Marcus Spurr, James Alexander Doty, Jose[)h McGrorty, Alamanda Pope Bruce, and Thomas Brondson Collins. I first saw four of them, viz. : Samuel Eugene Lackey, Marcus Spurr, Alamanda Pope Bruce, and Thomas Brownston Collins, at Stanbridge, aforesaid, during the night of the 19th, and, to the best of my knowledge, about one o'clock on the morning of the 20th day of October last past. Two of thom, namely, Bruce and Spurr, were in beH, at a tavern kept in the village of Stanbridge, by one William Elder ; and I made prisoners of them, and put kee[)ers over them. The prisoner, Collins, came into Henry Bacon's hotel, in Stanbridge East, between twelve and one o'clock in that night. I was in the hotel at the time, and ordered him into custody, and placed keepers over him and the prisoner, Samuel Eugene Lackey, was arrested on the side-walk near Mr. Bacon's hotel. He was also arrested by my orders, in my presence, and brought into Mr. Bacon's hotel. They were all dressed in common civilians' dress. The two others, namely, James Alexander Doty and Josepb McGrorty, Averc arrested by nie the following night, that is to say a1)out two o'clock in the morning, of the 21st day of October last. They were then sleeping in a barn, in the first Concession of Dunham, in the same district ; they were also dressed in civilians' clothes. These two last men were armed, each having a Colt revolver. The first two, namely, Bruce and Spurr, were also armed when arrested, having each two revolvers. The remaining two prisoners, before named, were not armed. These persons so arrested had their clothes spotted Avith mud, and some of them having even mud on their faces, having the appearance of persons who had travelled rapidly over muddy roads. I adopted the precaution of searching the whole of these men when they were arrested, telling them they were arrested for robbing the St. Albans bank. I found money upon all of them ; their pockets were all filled. Upon the arrest of the said Bruce and Spurr, at Elder's tavern, the following packages of money, to wit, one 88 t ,1,1 [•S, 111 i-e all lud, the Iddy lese for ^m; ind package of bank bills of the St. Albans bank, containing one thou- sand dollars, and marked on the cover witli the initials, " C. N. B.," being the initials of Cyrus Newton Bishop, the teller of the St. Albans bank ; another package of bank bills of the same Itank, of the denomination of twenties, beanng also on the cover the initials of Mr. Bishop ; also another package of United States notes, com- monly called greenbacks, to the amount of nine hundred dollars, like- wise counted and bearing the initials of Mr. Bishop, and another package of the same, to the amount of one thousand dollars ; another package of bank bills of the St. Albans bank, to the amount of one thousand dollars, and initialed on the cover, as above stated ; anoth- er package of bank bills of tlie same bank, to the amount of one thousand dollars, marked on the cover in the same manner: another package of bills of the same bank, to the amount of one thousand dollars, likewise initialed on the back ; Another package of bills of the same bank, of the denomination of fifties, to the amount of one thousand dollars, likewise raarked on tlie cover; also anotlior pack- age, containing one thouiiand dollars of bills, of the same bank ; eleven other packages of bills of the same bank, each containing one thousand dollars, and marked in the same way on the back ; also a package of bills of the same bank, to the amount of five hundred dollars ; another package of the same, to the amount of four hundred dollars ; another 1" the same, to the amount of four hundred and ninety-five dollars ; another of the same, to the amount of one hundred dollars. jNIauy of the packages had no l>ands on them, and others had, and Mr. Bishop put new bands on them, and marked them, having counted them ; and likewise a package of United States Treasury notes, commonly called seven and three- tenths Treasury notes, to the amount of fourteen thousand eight hun- dred dollars. The said Bruce and Spurr, as I have stated, were in bed. When I entered their bed-room, they were sleeping together in the same bed. These packages of money and Treasury notes I took out of the pockets of their coats and trousers, and sonif packages I took loose under their pillows, from under their heads ; and I also found in their pockets a few dollars in American half dollars. These packages of bank bills, and treasury notes, and silver I have now handed to Guillame Lamothe, Escj., chief of police, order by of the judge of sessions. I found upon the prisoners. Lackey and Collins, when I searched them in Mr. Bacon's hotel : two packages of bank-bills of American banks : one containing nineteen hundred and eighty-four dollars, in the other package, including green- backs and New England bills, to the amount of two thousand six hundred and ninety-five dollars, which I now hand over to the said chief of police, by order of the judge of sessions.' They had these packages of money and greenbacks in their pockets. I found c im'. it,, .^il' I ! il m m W I 34 ItPI 4 upon the prisoners, James Alexander Doty and Joseph McGrorty, upon my arresting them in the harn, packa<^es of bank-hills, one of which packages now produced by me, contains five thousand two hundred and sixty dollars ; another package of bank-])ill3 and greenbacks, marked as containijig three thousand and sixty-five dollars ; another package of l)ank-bills, marked as containing seventeen hundred dollars ; one package principally greenbacks, and a few bank-bills, marked as containing fourteen hundred dollars ; one fcjt. Albans bank bill for twenty dollars ; and twelve hundred dollars of United States five-twenty bonds, which I now produce and hand over to the said chief of police, by order of the judge of ses- sions. I found these packages of money and United States notes in the pockets of the said Doty and McGrorty, when I so searched them in the s^'.id barn. And my further examination is continued till to-morrow morning at ten o'clock, and I have signed II. N. WHITMAN. SAYorn and taken before me this 8rd day of November, 18G4. ChAS. J. COURSOL, J.S.P. And on this day the fifth day of November in the year of our Lord one thousand eight hundred and sixty-four, the above depon- ent Henrij Nelson Whitman appears before the undersigned Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal and having been sworn in the presence of the above named prisoners deposeth and saith : Upon the arrest of the prisoners, Bruce and Spurr, at William Elder's tavern, I found in their possession four revolvers, which I suppose to be of Colt's manufactory, each revolver being covered with leather belts or holsters. These revolvers I now produce, and they are in the same state now as when I found them in the possession of the said Bruce and Spurr. They had them under their pillows in the bed they were sleeping in. Each revolver had six chambers, some of them loaded and cap- ped, and a few of them having the appearance of having been discharged. These revolvers I now mark with my initials on the belts for the purpose of identification, and now hand them over to the chief of police, by order of the judge of session. I found no arms u]X)n the prisoner Collins, nor upon the prisoner Lackey. I found, upon the arrest of the prisoners, Doty and McGrorty, in the barn, and under their clothing thrown upon the hay, two revolvers of a similar description, contained each in a leather belt, and I now produce them in the same state as I found them, and I now mark them in the same manner for identification, and give them to the f 35 .1 i- ; \ !i said chief of police, by the same order. These revolvers are also loaded, and almost all the chambers are capped. From Stanbridge East to St. Albans, in the State of Vermont, there is a direct road, and the distance is about twenty-five miles, and from the place where Doty and McGrorty were arrested to St. Albans, there is about the same distance ; b\it the barn, Avhere they were secreted, is about a distance of eighty rods from the road leading from Stanbridge to Dunham Flats. I took possession of the revolvers, as well as of all the money I found in the possession of the said prisoners, and kept them safely until I produced them before this Court. When I arrested the said Bruce and Spurr, one of them asked me whether I was a British officer, and I answered that I was a magistrate, and that I arrested them for robbing the St. Albans banks. One of them, whom I believe to be Bruce, said, we are Confederate soldiers, and that the money they had captured from St. Albans, was in retaliation for the destruction of private property by Sheridan, in the Shenandoah valley. At the time this conver- sation took place, I had taken possession of the money found upon them. They then asked me to telegra])h to C. C. Clay, at Montreal, to inform him that they were captured, and to do his })est for them. They refused giving their names to me. I informed them tha. there was no telegraphic communication from that place ; that they woulil as soon get an answer by letters, and the next day they Avrote a letter, addressed, as I believe, to C. C. Clay. They told me that the said Clay was a Confederate agent at Montreal. The bank bills, spoken of by me, and which I found in their possession, they both acknowledged to have taken out of the banks at St. Albans. In conversing with me, while they were in my charge, they also told me how they got away from St. Albans. They were both together in the same room with me at Elder's tavern. They said they had taken horses wherever they could find them in St. Albans ; had put blankets on, and that many had no saddles on ; and that they rode oflf to Canada, and that having no saddles, were badly chafed for riding so long ; that when they got to Canada, they had abandoned their horses, in order to avoid pursuit. The morning following their arrest I found three horses loose, on the main road, without saddles or bridles. I secured them, and they were shortly afterwards claimed by their owners, residents of St. Albans. This is about all Bruce and Spurr said to me ; and I made use of no threats, nor held out any inducements to them to make such state- ments ; they were freely and voluntarily made. Upon the arrest of the prisoner Collins, and during the time he was in my charge, he made similar statements to me as those made by the other prisoners, as also did the prisoner Lackey. The prisoners Doty and McGrorty made to me similar statements, and admitted that \m''\'' ■1: ' ■Si ' ' ■I- ! m ': r '!■ m 'm' %. 36 the bank bills and securities taken from them, and produced hy me before this Court, had been taken by them from the St. Albans banks, with the exception of some small change in their wallet, which they said were their private moneys, and which I have this day returned to them, by order of the judge of the sessions. The statements of the four last prisoners referred to, were also voluntarily and freely made. Two or three days elapsed between the period of the first arrest and my handing over the six prisoners to the judge of sessions. They did not tell me where they had got their arms. Part of the last day these prisoners were in my custody, I had them all together in one room. They appeared to me to know each other very well, and seemed to be very glad to meet. Previously I kept them separate — two at one tavern, and two at another ; and it Avas at their own special request to be permitted to meet together in one room, that I granted that request. I re- member saying in the presence of, I beheve, four of them, that they had shot two or three ])ersons in St. Albans, namely, C. H. Huntingdon and one Morrison, and that it was not expected that the said Morrison would live. They said that they were sorry, and that their orders were not to take life, except in their own self- defence. They all admitted to me that there were twenty-one of them altogether at St. Albans. The foregoing deposition having been read in the presence of the prisoners so charged the deponent declares the same to contain the truth and hath signed Sworn before me at Montreal, this 5th November, 1864. H. N. WHITMAN. ClIAS. J. COUIISOL, J.S.P. The following answers given upon Cross-examination by Mr. Kerr, counsel for the prisoners and in their presence. Nothing but a verbal complanit, not on oath, had been made to me previous to my arresting the six prisoners mentioned in my examination-in-chief. This complaint was made to me between eleven and twelve o'clock at night by one Smith and Holmes. They told me there was a band on the way to this place, that is Stanbridgc, who had robbed the banks at St. Albans, and shot men down in the streets. I said then there was no time to make out any writings, but I would proceed in person to arrest them, for I would not delegate any other person to arrest them, for fear they would abuse that power. I supposed at that time I had authority under the Treaty Act, but I have since learned it has been amended. I was informed by the parties who gave me 37 <'j \y Mr. made I in my nwecu lolmcs. lliat is shot make Itliem, li, for |me I lied it \q me the information that the band of men who had robbed the banks must have in their possession a large amount of bank notes and securities, and the people of St. Albans were in pursuit of them. The said men did not tell me that the persons who had taken the money from the banks had declared that they were Confederate soldiers. I did not think about the money when I determined upon going to superintend the business, but I fancied that there might be some infraction of our laws by them, or the party in pursuit. About six men were with me when I entered Bruce and Spurr's room in Elder's tavern. They were those whom I had called upon to assist me. The money was taken from them in the bed-room. Some of it I took out of their pockets, and the other was taken from under their pillows, by a man of the name of Martindale, in my presence, and handed over to me immediately. I took it right over to the bank and had it counted by the director of the bank. I helped him do so, and one Mr. Blynn, a magistrate, also helped him. It was then rolled up and sealed in their presence. I think it was a little after two o'clock in the morning when the prisoners Bruce and Spurr were arrested. I do not think that half an hour had elapsed between their arrest and the counting of the money. Mr. Blynn accompanied me to the bank from Elders ; C. H. Baker also. I did not count the money in the presence of the prisoners from whom it was taken. A person of the name of Knight who assisted me handcuffed the prisoners Bruce and Spurr. The next day I took handcuflfs from two of the prisoners at Elder's and told Mr. Knight to take them off from the others. Collins was taken in Bacon's hotel, and was searched in a room. Soon after his arrest I Avent to arrest some more, but as they had gone away I went back to the room where I had left Collins under keepers, and as I entered the room some one had commenced pull- ing the money out of their pockets and laying it upon the table. I told them to stop for I must see from whom it is taken, and this money must be kept by itself. I then continued the search myself in person, and got what I supposed to be all he had ; but found on the next day three one hundred dollar bills, which he, Collins, handed out to me, stating at the time, it was his private funds. I got from Collins in bills and greenbacks the amount of two thousand six hundred and ninety-five dollars. When I first saw Collins he had a satchel about his shoulders. When I returned and saw the men in taking the money out of Collins' pockets, he, (Collins,) I believe, complained that money had been taken by some of the men from his satchel. Question. — Did you or did E. C. Knight arrest the prisoners Bruce and Spurr ? Answer. — I had previously sent for Mr. Knight to come and . ■ I! $i ■;:• ...''M 38 11 assist mc to arrest those men. He, and four or five others, went with mc up to the door where they were sleeping. Knight went to knock at the door, and I ordered him away from the door. Another person, I think Martindale, burst the door, and he, Martindale, Cross, and I went in first, and the rest that Avere with me followed, and I told the prisoners that they were arrested for robbing the St. Albans banks ; Martindale laid his hand upon them first, and then Knight jumped upon the bed and put handcuffs on them. I took some money in a roll from Collins' satchel. The two packages of notes now produced, marked as containing one, two thousand six hundred and ninety-five dollars, was taken from Collins' pocket ; and the other, marked as containing nineteen hundred and eighty-four dollars, was taken from Lackey's pockets. The money I took from Collins' satchel is included in the package marked as containing two thousand six hundred and ninety-five dollars. The reason that the prisoners assigned for not giving me their names was that they were of respectable parentage, and that they did not wish their names to go back to their friends as having connection in this raid, and for the reason th.at it would give their friends unpleasant feelings. I swear that I have produced all the moneys and other effects either taken by me from the prisoners, or delivered to me by other people as having been taken from the prisoners, Avith the exception of a satchel. The prisoners' counsel declares having no further questions ; and this deposition having been read in the presence and hearing of the said prisoners, the deponent declares it contains the truth, and hath signed (Signed) H. N. WHITMAN. Sworn, taken, and acknowledged^ before me, on the day, month, I and year, and at the place, here- ( inbefore mentioned. ^ (Signed) CnAS. J. Coursol, J.S.P. 39 L's, the PROVINCE OF CANADA, District of Montreal. POLICE COURT. Examination of John O^Leary, of the city of Montreal, in the District of Montreal, detective police officer, taken on oath this 7th day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house, in the city of Montreal, in the District of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city t»f Montreal, in the presence and hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen, and the United States of America, and our Statutes in that behalf made, with having committed within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, S(^uire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall AVallace, James Alex- ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, ]Marcus Spurr, and William li. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of the L'nited States of America, being then and there armed with certain offensive weapons and instruments, to wit : pistols commonly known and called revol- vers, loaded with poAvder and ])alls and capped, in and upon one Cyrus Newton Bishop, feloniously did make an assault and him the said Cyrus Newton Bishop in bodily fear and in danger of his life, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and pro- perty of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and pos- session, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. The deponent, John G'Leary, upon his oath deposeth i p!^ lit '^; m i*ft - i if. S. ■pi ■ vS si 40 ir;' jii ■' and saith : On the twentieth of October last, I arrested one of the prisoners, who now gives his name as George Scott, and who is under examination at Farnham, which is distant from St. Johns in the District of Iberville, about nineteen miles. I was out there by the instruction of the chief of police, Mr. Lamothe, to arrest, if I coald, the persons who had broken into the banks of St. Albans, aforesaid ; and it was whilst I was on duty there that I arrested the said Scott. At the time I arrested him he was in the railroad station, and after his arrest I put him in the custody of William Donohue, a sergeant of the government police force of the city of Montreal ; but before I made him my prisoner, I asked if he was from Montreal, and he said he was. I then asked him from what part of Montreal ; he said that he resided at the head of St. Dominique street ; I asked if he knew any person there, and he said he did not. I then asked him if he knew me, and he replied he did not ; upon which I called him outside, and told him, that I was a detective officer from Montreal ; I then searched him, and found in his possession the sum of two thousand eight hundred and fifty-nine dollars and thirty-one cents, composed of promissory notes of the United States of America (commonly called greenbacks), bank bills issued by different banks in the said United States, gold and silver coin, and one dollar and eighty cents in the postal currency of the said States, and five cents and one penny of Canadian currency which I now produce at this examination. After taking possession of this money, I counted it, and having sealed it in a paper package, I tied it in a pocket handkerchief, and delivered it to Guillaume Lamothe, Esij., chief of police. On Saturday last, the fifth of November instant, I received the said package from the said chief of police, sealed and tied in the manner and form as it was when I delivered it to him. I then opened the said package in the presence of Cyrus Newton Bishop, now present, for the purpose of letting him see its contents with a view to its identity, after which I put my private mark upon it, and again handed it over to the said chief of police, from whom I have this day received it in the same order and con- dition in which it was when I gave it to him upon the said fifth instant, and it has upon it the private mark of which I have just spoken. At the time I arrested the said Scott, I asked him his name, and he told me it was George Williams : I told him then that I arrested him upon suspicion of his having been one of the persons who had broke into the banks, at St. Albans, aforesaid ; he replied that he was a Confederate soldier, and requested our protection. When I accused him of having broken into the banks of St. Albans, he neither admitted or denied having done so. He was dressed in civilian's clothes and appeared to be much fetigued. He had no fire-arms about him, but had a map of Canada. The prisoner, who 41 now gives his name as George Scott, is the same person whom I arrested in Farnham, and who gave me his name as George WiUiams, and whom I put into the custody of said sergeant William Donohuc. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares the same to con- tain t])e truth, and hath signed. (Signed) JOHN O'LEARY. Sworn before me at Montreal, this } 7th November, 1864. j ChAS. J. COURSOL, J.S.P. The following evidence is given upon cross-examination, by Mr. Laflamme, counsel for the prisoners, and in their presence : The prisoner Scott did not to my knowledge claim any portion of the money taken by me from him as aforesaid as his private pro- perty. The prisoners counsel declare having no further questions to put to the deponent, and this deposition having been read in the pre- sence of the said prisoners, the deponent declares it contains the truth, and hath signed. JOHN O'LEARY. Sworn, taken, and acknowledged, on the ^ dav, month, and year, hereinbefore > mentioned, before me. (Signed) Chas. J. CoURSOL, J.S.P. r. : Iff.iJ '.K-.'V %' WM if;/.. f im. i::;.ii itv Jf'^Vi M m n 42 PROVINCE OF CANADA, } District of Montreal, S rOLICE COURT. The examination of Rosivell Albert Ellis, of the village of "Water- loo, in the County of Shefford, in the District of Bedford, Esquire, Justice of the Peace, now in the city of Montreal, taken on oath this eighth day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Couri-housc, in the city of Montreal, in the District of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace hi and for the said City of Montreal, in the presence and hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Svvager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph Mciirorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and ^Villiam IL Hutchinson, -who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen, and the United States of America, and our Statutes in that bclialf made, with having committed within the jurisdiction of the United States of America, tlie following crime mentioned in the Treatv between Her Majesty the Queen, and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruco, Charles Moore Swager. George Scott, Bennett H. Young, Caleb ^NIcDowall Wallace, James Alex- ander Dotv, Joseph McGrorty, Samuel Simpson Gregg. Dudley Moore, Tnomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of the United States of America, being then and there armed with certain oiFensive wea- pons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and ball and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life, then and there feloniously did put, and a certain sum uf money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and pro- perty of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and pos- sesssion, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity 43 1^ of the said State. The deponent, RostveU Albert FAlis^ upon his oath dcposeth and saith : — About three o'clock on the morning of the twenty-first day of October last past, I was informed that a person suspected of being engaged in the St. Albans raid was stopping at Hall's hotel, at the railroad station, in Waterloo aforesaid ; at about six o'clock on the Same morning, I found this person in the railroad cars, having taken passage for Montreal, and I now see him, and recognize him by the name of Dudley INIoore, as one of the prisoners here under examination ; I arrested the said Moore and caused him to be taken to Hall's hotel. A short time after- wards, about ten minutes, the money contained in the package which I now have before me, was handed to me by Edward Lang- ley, in presence of Charles S. INIartin, a bailift", who took the said Dudley Moore, and also in presence of David Frost, junior. After receiving the money, I counted it in the presence of these persons, and found that it amounted to nine hundred and fifty dollars, and was contained in ten packages, nine of Avhich contained one hun- dred dollars each, the other fifty. The said ten packages were tied together with a paper band. I was also handed l)y either the said Langley or Martin a small wallet, which is now produced, and which I found contained a fifty dollar promissory note, of the said United States of America, commonly called grcen))acks ; there was also a ten dollar note issued by the Confederate States. The said nine hundred and fifty dollars, which I received from the said Langley, consists altogether of promissory notes of the United States, commonly called greenbacks. After having, as already stated, counted the said money, I rolled it in a handkerchief, put it up in a paper parcel, sealed it, and delivered it to the said Charles S. Martin ; it is the same parcel which has this moment been placed in my hands by Guillaume Lamothe, Esq., Chief of Police, and I find it in the same order and condition in which it was when I deliv- ered it to the said Charles S. Martin, and containing the amount of money which I counted and put up in the same. Upon the twenty- first day of October last aforesaid, I put the said Dudley Moore into the custody of Charles Hibbard, a bailiff", to be by him con- veyed to St. Johns gaol ; but before he left I had a convfcisation with the said Moore, respecting the said raid ; he stated to me in the course of our conversation that he was engaged in the raid, that he did not go into any of the St. Albans banks, but that he acted as a guard on the outside for those that did go in. At the same time that I received the said sum of money, I also received from the said Langley and Martin three loaded revolvers, which I afterwards returned to the said Martin ; the prisoner was dressed in civilian's clothes. When the prisoner stated to me that he had been on guard outside the bank in St. Albans, I did not hold out , i-t' Mm .. .J, (. lii ■■Ik rw'ii •:r^ ' It' u 'If-'! Xil 44 to him any inducement to make such statement, nor did I use any threats ; the admission by him was entirely voluntarily. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares the same to con- tain the truth, and hath signed. R. A. ELLIS. Sworn before me at Montreal, this 8th November, 18(34. (Signed) CiiAS. COURSOL, J.S.P. w I H'. i I The foregoing deposition having been made and read in the pre- sence and hearing of the prisoners, Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett IL Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, are asked if they have any questions to put to the deponent, and the following evidence is given in cross- examination in presence of the prisoners, by their counsel, Mr. Abbott : I arrested the said Moore en verbal information ; no infor- mation upon oath was made before me ; two young men, named Manson and Farmer, gave me information that there was a young man at Hall's hotel that they suspected of being o^e of ' lie raiders, because ho had offered his horse for sale for twent;y five dollars of the United States money. It was upon this infor- mation given verbally that I went and arrested the prisoner. I did not search him, but he was searched before I got over to the hotel. I got what was said to be found upon him from Mr. Langley. I got nothing at all from himself. There was a five dollars in gold in the wallet, and I saw a pocket knife, but did not take it in my pos- session. The wallet I speak of is the one mentioned in my exami- nation-in-chief ; I think Martin took the pocket-knife along with the pistol. The five dollars in gold are now in the wallet. The pri- soners' counsel, Mr. Abbott, having declared he had no further questions to put to the deponent, this examination is closed. (Signed), R. A. ELLIS. Montreal, 8th November, 1864. (Signed) ^ Chas. J. Coursol, J.S.P. 45 l,i PROVINCE OF CANADA, ) District of Montreal. > POLICE COURT. The examination of Q-eorpe Edwin Fairckild, of the town of St. Albans, in the State of Vermont, one of the United States of America, merchant's clerk, now in the city of Montreal, taken on oath this 8th day of November, in the year of our Lord one thou- sand eight hundred and sixty-four, at the Police Office in the Court- house, in the city of Montreal, in the District of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Sc^uire Turner Teavis, Alamanda Pope Pruce, Charles Moore Swager, George Scott, Bennett IL Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William IL Hutchinson, who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen, and the United States of America, and our Statutes in that behalf made, with havin'j: r-ommitted within the jurisdiction of the United States of America, die following crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit : — For that they, they said Samuel Eugene Lackey, S({uire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett IL Young, Caleb McDowall Wallace, James Alex- ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of the United States of America, being then and there armed with certain oftensive weapons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop, feloniously did make an assault and him the said Cyrus Newton Bishop in bodily fear and in danger of his hfe, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and posse&!sion, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity 5 f,-; IT A ■m'^ 1 ;f '■ im: '!:■■: i .i I ■! IT 40 of the saitl State. Tlie deponent, Geortli (hiy of Oetoher last i)ast; I saw no one shot, and saw no acts of violence hy the men in arms, between the hours of three and four of the clock on that day, T was standing at a distance of about ten or fifteen rods from the said St. Albans bank, when I saw about twenty men armed with revolvers. They were all on horseback, with the exception of two or three, ^vho seemed as if they were looking for horses. One of the party so armed and on horsel)ack ap])roached me, and demanded from Edward Nettleton, who was then in conversation with me, his hat. lie demanded it a second time, at the same moment drew two revolvers, when the said Nettleton replied that he could not have his hat. This person who demanded it said he wanted it for one of his party who had lost his hat. Nettleton was next told by the person demanding his hat, that unless he gave it to him damned quick he would shoot him, and then cocked both revolvers, and pointed them at said Nettleton. At this moment he Avas within six feet of him. Nettleton, seeing the revolvers cocked, put his hand under his coat as if with the intention of drawing an arm therefrom. Upon seeing this, the gentleman on horseback asked first if he had any arms, and also to show him the inside of his coat, remarking at the same time that if he did not ho would shoot him through. My further exami- nation is continued till to-morrow morning at ten o'clock, and I have signed GEORGE E. EAIRCIIILD. Sworn, taken, and acknowledged,^! before me, on the day, month, and year, and at the j)lace aboved mentioned. (Signed) CiiAS. J. Ooursol, J.S.P. On the 0th day of November, in the year of our Lord one thou- sand eight hundred and sixty-four, the deponent above named re- appear before mc, the undersigned Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, and being resworn, deposeth and saith : I then told Nettleton not to stand an insult. At this tlie man on horseback pointed his revolvers at me, and asked me if 1 had any arms with me. I told him I had none ; and I hoped he would not shoot an unprotected person. At this moment another of the party, the one who needed the hat, rode up and presented two revolvers at the said Nettleton, telling the other person on horseback not to parley, but to shoot the damned cuss. At this time there was a cry for help from one of their party, upon which the two persons referred to rode off in tho .{:. direction where help was called tor. I now recognize and point out as havinj<; been among the army party, 1 saw at ISt. Albans aforesaid, on tlio said llHh day of October last, five of the prisoners now imdrr examination, wlio give their names as lionnett II. Young, Charles Moore ISwager, Joseph RlclJrorty, C.'.leb McDowall Wallace, and Creoi-ge iScott. These five persons I saw on horseback, armed each with two revolvers. The two first persons to whom I have referred, and who presented revolvers at said Nettleton and myself, were and still are unknown to me. One of these two pei-sons was called the Captain, After he had left Nettleton and myself, I next saw him at about two rods from the St. Albans ])ank, where nearly the whole party liad assemlded, ninnbering from fifteen to twenty. They were all on horseback, armed with revolvers. I then heard the pers«»n called Caj)tain call upon them to form line, which they did, but not very regularly. After having done so, the five prisoners whom I have pointed out and identified fired several shots at the citizens. At the time the line of which I have spoken was being formed, I saw Captain Conger, a citizen of St. Albans, approaching this party of armed men, with a gun in his hand, followed by a few other citizens of the place. He aj^jtarently was trying to fire a gun at them, but could not get it off. It was then nearly four o'clock in the afternoon. After the armed party, amongst whom Averc the said five prisoners identified by me, had fired two or three rounds oach,tlieir horses became un- manageable and they headed oft' in different directions. At the mo- ment I saw one of the party, and the only one, on foot. The person called Captain, seeing this man without a horse, rode up to Fuller's liverv stable and ordered Mr. Fuller's saddler to lead a horse that was then standing there to the said person belonging to his party ■who had not, as yet, got one. The saddler did as he was ordered and led the horse called for and gave him to the said person whom I have spoken of as having been on foot. The so-called Captain accom- panied the saddler from the livery stable, keeping the revolver pointed at him until the said horse was given up. After this occurrence, there was a considerable confusion in the street, created by the said armed party and the citizens. Shots were fired in different directions by this armed party. After this, I saw the said armed party riding oft" from the said town of St. Albans. They were the same party I saw at the said St. Albans bank. They acted in concert with each other from the beginning to the ena. They were all dressed in civilian's clothes. I know that the St. Albans bank aforesaid is a banking institution, doing business at St. Albans aforesaid. The conduct of the said armed party at the said St. Albans bank, and elsewhere in the said town of St. Albans, was such as to put the citizens in fear of their lives. I know that they put me in fear ir it f 'U f' ; ' ■■■■]■' 1' ;r "m'.i^ kiV. ^ ■; < S 48 of losing my life. All the circumstances hereinbefore detailed by me took place at St. Albans aforesaid, between the hours of three and four of the clock on the said 19th day of October last past aforesaid. When I said that I saw no act of violence committed, I meant that I saw none actually shot or wounded. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares the same to contain the truth, and hath signed GEORGE E. FAIRCIIILD. Sworn, taken, and acknowledged," before me, on the day, month, and year, and at the place here- in before mentioned. J (Signed) Chas. J. Coursol, J.S.P. The foregoing deposition having been made and read in tlie pre- sence of the prisoners, they are asked if they have questions to put to the deponent, and they declare by their counsel, Mr. Kerr, that they have, and the following evidence is taken in cross-examination. I did not see townspeople fire upon the party. Captain Conger was the only man I saw. The prisoners counsel declare having no further questions to put to the deponent, and this deposition having been read in the pre- sence of the said prisoners, the deponent declares it contains the truth, and hath signed GEORGE E. FAIRCHILD. Sworn, taken, and acknowledged, on the day, month, year, and at the place above mentioned. (Signed) Chas. J. Couhsol, J.S.P. PROVINCE OF CANADA District of Montreal. POLICE COURT. The examination of Edmund Conant KnifjJit, of the township of Stanb ridge, in the District of Bedford, bailiff, now in the city of Montreal, taken on oath this ninth day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house in the city of Montreal, in the District of jNIontreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alaman- der Pope Bruce, Charles Moore S wager, George Scott, Bennett IL Young, Caleb McDowall "Wallace, James Alexander Doty, 49 Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon ColUns, Marcus Spurr, and William H. Hutchinson, who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen, and the United States of America, and our Statutes in that behalf made, with having committed within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simp- son Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of United States of America, being then and there armed with certain offensive weapons and instruments, to wit: pistols commonly known and called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop feloniously did make au assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of tlie value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and possession, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. The deponent Edward Oonant Knight^ upon his oath deposcth and saith : At about three o'clock in the morning of the twentieth day of October last past, I arrested two of the prisoners, Spuir and Bruce, at Elder's hotel in Stanbridge. They were in bed. I went to the door of the room where they were, and I found it bolted. Martin Rice, of Stanl)ridge, was with me, also one Cross, C. W. Martindalc, and Irwin Briggs. There were others present, but those were all that I called to assist me. Mr. AVhitman and Mr. Blynn, magistrates, were also present. I and my party entered the room, and the magistrates came afterwards. I immedi- ately jumped into the bed where the prisoners were, and told them they were prisoners. They asked me why they were arrested. I told them it was for robbing the St. Albans banks. They asked me if I was a British officer, and I said I was a bailiff. I handcuffed D ■i \ V' .)■■ if ■ 1 # ;• m-' ' >i 'W I-. p.. ii\ ' ,1 •« 50 them. I searched to see if I could find any arms, and I found four revolvers between the feather-bed and straw-bed, and in the same j)lacc a large quantity of bank-bills. I took the revolvers, and handed them to Mr. Whitman, the magistrate, and also some of the bank- bills ; the balance of the money I think was given by Martindale to Mr. Whitman. Mr. Whitman took away the money and the revol- vers. I put the prisoners in charge of C. li. Barker and Irwin Jjriggs. I did not identify the money that I took. After conversation with Mr. Whitman, I went back and searched the prisoners further, and found in their possession four hundred and twenty-seven dollars and thirty- five cents in bank notes, scrips, gold and silver. This money I gave to Guillaume Lamothe, Esq., chief of police, on the twenty- fifth of October last. On the twentieth of October last, the prisoner now calling himself Bruce, I understood to call himself at that time Bennett, and the other one called himself Bruce. The pris- oners on the same day stated in my presence that the money Avhich had been found in their possession they had got from the bank in St. iVlbans, I saw at Stanbridgc, on the same day, the prisoners Collins and Lackey, and on the next day the prisoners McGrorty and Doty. These last two Avere arrested in a barn in Dunham : in the possession of McGrorty and Doty, bank-bills of dif- ferent kinds, some gold and silver, and some bonds, were found. The prisoners, Spurr and Bruce, stated on the twentieth <■? October last that they had come from Burlington, Vermont, th' 'ous morning, in a buggy to St. Albans. At the time the p ^ rs I have referred to, made the several statements that I have mentioned, no threats were made use of, nor inducements held out to procure such statements, which were voluntary on their part. The foregoing deposition having been read in the presence of the prisoners so charged, the deponent declares the same to contain the truth, and hath signed E. C. KNIGHT. Sworn, taken, and acknowledged, ^ before me, on the day, month, (^ and year, and at the place here- [ in before mentioned. j (Signed) Ciias. J. Coursol, J.S.P. And on this day, the 10th of November, in the year of our Lord one thousand eight hundred and sixty-four the deponent above named, reappeared before the undersigned Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace, in and for the city of Montreal, being re-sworn in the presence of the prisoners so charged, the foregoing deposition is then and there read to the said deponent, who declares upon oath that the same contains the truth ; and ■fj the the )rd )ve [ol, of td, It, id thereupon the said prlsonc)'=! are asked -whether thej have any (juestions to put to the said deponent, and they having answered that they had, the following evidence is taken in cross-examination by Mr. Abbott, the prisoners' counsel : I arrested the said prisoners ■without any warrant at all. I had no authority for arresting them, but the people of the village told me that a robbery had been com- mitted at the St. Albans banks, and that they were afraid that they were going to rob the Staubridgc bank. I am not aware of any information on oath having been laid against these men. When I told them I was a British officer, they said it was all right. They did not say anything else at that time ; but four or five hours after- wards they told me they were Confederate soldiers. I did not count the money I took from them in the first instance. I did not examine it sufficiently to ascertain the amount, but I should suppose there were several thousand dollars. When they told me they had got the money from the St. Albans banks, they also told rae that they had got it on a raid, wliich they had made upon St. Albans, upon the authority of the Confederate government, and that it would bo shown as such. It was about this time also that they told me that they Avere Confederate soldiers. They were asked if they were Jeff. Davis' boys, and they said they were. These matters, and the statements where they had got the money, all came out in the same conversation. The prisoners' counsel declares that they have no further question to put to the deponent, and this deposition having been read in the presence of the said prisoners, the deponent declares it contains the truth, and hath signed E. C. KNIGHT. Sworn, taken, and acknowledged,^ before me, on the day, month, ( and year, and at the place be- fore mentioned. (Signed) Chas. J. Coursol, J.S.P. -;"!E PROVINCE OF CANADA, District of Montreal. VOUCE COURT. m The examination of Q-eorge Roberts, of the town of St. Albans, the State of Vermont, one of the United States of America, clerk, now in the city of Montreal, taken on oath this ninth day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house in the city of Montreal, in the District of Montreal aforesaid, before the under- signed Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, ' : -li' : •!i'- ■-%!." ' .1 11 4 /.' ;i;.i 1 1 52 h- ■ ii Squire Turner Tcavis, Alamanda Pope Bruce, Charles jNIoore Swager, George Scott, Bennett H, Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William H. Hutchinson, -who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen, and the United States of America, and our Statutes in that behalf made, with having com- mitted within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons- don Collins, Marcus Spurr, and William H. Hutchinson, on the ninetet-ith day of October last past, at the town of St. Albans, in the State of Vermont, one of the United States of America, being then and there armed with certain offensive weapons and instru- ments, to wit : pistols commonly known and called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop, feloniously did make an assault and him the said Cyrus Newton Bishop in bodily fear and in danger of his life, then and there feloniously did put, and a certain sum of money, to wit: to the amount of seventy thousand dollars current money of the said United States of xVmerica, and of the value of seventy thousand dollars current money aforesaid, of the moneys and })roperty of the bank of St. Albans, a body corporate, constituted and recog- nized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and pos- session, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. The deponent, G-eorye Jioberts, on his oath deposeth and saith : I have been clerk in the American House in St. Albans aforesaid, since March last. I recognize two of the prisoners, namely, Young and Doty, having seen them in St. Albans prior to the nineteenth day of October last past. I saw Young there, I think twice before that day ; but I am not sure if it was , more than once. I saw him certainly once in the American House during the month prior to the nineteenth of October last. About two o'clock in the afternoon of the last mentioned day, I saw in front of the National bank, a man named Blaisdale, of St. Albans, having a disturbance with the prisoner, whom I now recognize, 53 )ans ung was . )USC 30Ut vf in ans, lizc. calling himself Caleb McDowall Wallace. They were struggling together in front of the said bank. Blaisdale had hold of Wallace, when I first saw them. Wallace was then armed with two revolvers. While this was going on, I saw two other persons near by armed the same way, one of whom I heard saying to Wallace " shoot him." Wallace, and the other armed person, took Blaisdale to the park in front of the American House. When I saw what I have related, I was standing on the veranda of the American House. The pris- oner, Young, came from the direction of the First National bank in front of the American House, on the veranda of which myself and eight or nine others were standing. Young presented two revolvers at the persons on the veranda, and said " that he was an officer in the Confederate service ; that he was sent there to take that town, and that he was going to do it, and that the first man that offered resistance he would shoot him." Then the prisoner, Bruce, Avhom I saw for the first time, near by, appeared armed with two revolvers. Bruce ordered the party on the veranda to go over to the park, which they did ; ho, Bruce, follo\\ing them. I went with the others to the park. Whcii I left the American House, or very soon after, Young started towards the northern part of the town. Bruce stayed at the park, and acted as guard, I should think, for about ten minutes, and then called upon Young, addressing him as Colonel, for assistance. The prisoner, Doty, then came on liorseback from the yard of the American House. About the same time I saw some twelve other persons, some of them Avith horses, coming from the yard of the American House, among whom I recognize the prisoner, Charles Moore Swager. These persons were armed with revolvers, most of them, I think, having two each. They began to stop what teams there were in the street, taking the horses belonging to the teams. Whilst I was in the park, I saw four or five persons armed with revolvers, standing on the steps of the Franklin County bank, which is near the American House, but 1 do not recognize any of those persons now. Some ten minutes after, wo crossed to the park, or perhaps less. I saw the prisoner, Young, at the north end of the veranda of the American House shoot one Collins H. Huntingdon with a revolver, wounding him. Huntingdon then Avent into the park. A short time after this, all the persons I have referred to, armed as aforesaid, started off together, most of them on horseback, towards the north end of ihe town. They all seemed to know each other, and acting in concert. I do not recognize any of the prisoners, except those I have named. I heard several shots fired at the upper end of the town. Upon every occasion when I saw Young, Swager, Wallace, Bruce, and Doty, at St. Albans, as I have mentioned, they were m * ■■ \ *\ ■ •If' M ; Mi m ' ' i I i \ ■ I . •' IS 11;? ■1 % I 4. ■'!i ft % 54 dressed in ordinary civilian's clothes. I saw nothing either in dc- neanor or dress to indicate that they had or claimed any military character whatever. On the afternoon of the nineteenth of October last past, the occurrences I have spoken of did not look like a military expedition. I thought the armed persons were a mob. On the nineteenth of October last, the prisoner, Swager, was known by the name of Jones, prior to the outbreak mentioned. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares that the same contains the truth, and hath signed. GEORGE AY. ROBERTS. Sworn, taken, and acknowledged,^ before me, on the day, year, and month, and at the place hereinbefore mentioned. (Signed) Ciias. J. Coursol, J.S.P. The foregoing deposition having been made, and read in the pre- sence of the said prisoners, they are asked if they have any ques- tions to put to the deponent, and that having declared by Mr. Kerr, their counsel, that they had, the following evidence is taken on cross-examination : When I saw Blaisdale and Wallace, they were both standing up. Blaisdale had hold of him somewhere about the neck. I was about twenty yards from Young when he shot Huntingdon. They apparently were talking together previous to the shot being fired. Huntingdon was moving on at the time he was shot. I should judge from Young's action that he wanted Huntingdon to go across in the park where we Avere. I saw ten or twelve men near the American liousc belonging to the band, and there were some others further up the street. Young appeared to be the leader, and have charge of them at that part of the town. They appeared to act together, but I saw no plan of action. I never saw a mob in St. Albans armed the way they were, with one of their members proclaiming himself an officer in the Confederate service. I have never seen any of the Con- federate troops. I have never seen Confederate troops in active service. When Young came to the veranda of the American House he said, " Gentleman, I am an ofiicer in the Confederate " service, I have been sent here to take this town, and I am going " to do it ; the first that oifers resistance I will shoot him." St. Albans has been a recruiting post for the American army before now. The prisoners' counsel declares having no further questions tO' put to the deponent, and this deposition having been read in the J 65 presence of the saul prisoners, the deponent declare it contains the truth, and hath signed GEO. W. ROBERTS. Sworn, taken, and acknomledged,' hcforc me, on the day, year, and month, and at the place hereinhefore mentioned. (Signed) CiiAS. J. Coursol, J.S.P. 1)1 '' PROVINCE OF CANADA, District of Montreal. POLICE COURT. Examination of John McLougJiUn, of the city of Montreal, in the District of "Montreal, chief constable of the Government Police, taken on oath this tenth day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house, in the city of Montreal, in the District of ]Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Ben- nett IL Young, Caleb McDowall Wallace, James Alexander Doty, Joseph ^IcGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William IL Hutchinson, who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Ilcr Majesty the Queen and the United States of America, and our Statutes in that behalf made, Avitli having committed, within the juri?!diction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen and the United States of America, to wit: — For that they, the said Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett IL Young, Calel) McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simp- son Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William IL Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Ver- mont, one of the United States of America, being then and there armed with certain olfcnsivc weapons and instruments, to wit : pistols commonly known and called revolvei-s, loaded with powder and balls and cajjped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the United .1 * 'is:/! Ifu^U- ,1^' II ?■*;•■ •■i m I « ■ «. |l i 56 States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody and possession, and against the ■will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. The deponent, John MoLoughlin^ on his oath depose th and saith : On the 20th of October last, I received orders to proceed to St. Johns and from thence to Farnham, in pursuit of such persons as might be found thereabouts, or elsewhere, who had sought refuge in Canada, after having been engaged in the St. Albans raid. In accord- ance with my instructions I proceeded there, accompanied by Mr. Sowles, cashier of the First National bank, at St. Albans, and Detective John O'Leary. Upon the afternoon of the said 20th day of October last, a prisoner, whom I now recognize and identify as George Scott, and now under examination, was arrested by said John O'Leary at the railroad station in Farnham, in the District of Iberville. I was present at his arrest and at his search, which took place immediately after his said arrest. Upon his person were found two thousand eight hundred and fifty-nine dollars and thirty- one cents, which was taken charge of by said O'Leary ; and which during his examination as a witness in this matter, at which I was present, he produced and identified as the same money which he took from Scott. After he had been arrested, and the money taken from him, he stated he was a Confederate soldier, and claimed protection as such. He was dressed in civilian's clothes, and looked very much fatigued. He had no fire-arm with him. On the following morning, the 21st October last aforesaid, at the hour of seven of the clock, I arrested in the same place Avhcre said Scott was taken another person, who gave me his name as Samuel Gregg, whom I now point out and identify among the prisoners here under examination under the name of Samuel Simpson Gregg. After having arrested him he told me he was going to Montreal, and fn^m there to Quebec, where he had some friends. He also said that he~ came from Kentucky. I then searched his person, and found upon him thirty-one dollars and eighty-one cents ; con- sisting of one twenty dollar gold piece, one five dollar gold piece and three one dollar bills upon banks in Canada, and one dollar bill of the Windsor County bank, one dollar and thirty cents in silver, and one dollar and forty-five cents in the postal currency of the United States, and six cents in coppers. He had no other money about him. These sums of money I now produce. They have .f'S 57 remained in ray possession ever since. I also found upon his per- son nine photographs. At the time I made the search, Albert Sowles, -who has also been examined as a witness touching the sub- ject matter of this investigation, was present, and, upon seeing the photograph upon the back of which is pencilled the name Caleb McDowall Wallace, and one of these taken by me from the said Gregg, he immediately said, " That is the likeness of the man who presented a revolver at me, in the bank, whilst the others were robbing it." I now see under examination the said Wallace, and 1 believe the photograph, upon which his name is pencilled, is a correct likeness. He did not make any particular remarks about any of the other photographs, but I recognize in another of them, upon the back of w^hich is pencilled the name of James Johnson, the likeness of the prisoner Thomas Bronsdon Collins, now also under examination. At the time I took possession of these photo- graphs, I asked the said Gregg whose likenesses they were, and I put upon the back of each the name Avhich he gave me. lie, the said Gregg, Avas dressed in civilian's clothes, and was suffering from a sprain of the ankle. I had no further conversation with the prisoner ; I knoAV no more of him or about him. The foregoing deposition having been read in the presence of the prisoners so charixed, the deponent declares the same to contain the truth, and hath1;igned JOHN McLOUGHLIN. Sworn, taken, and acknowledged ~ before me, on the day, month, and year, and at the place, here- f inbefore mentioned. J (Signed) Ciias. J. Coursol, J.S.P. The foregoing deposition having been made and read 'v> the presence and hearing of the prisoners so charged, they are aoked if they have any questions to put to the Avitness or deponent, and they having declared they had, by their counsel, Mr. Ketr, the folloAving evidence is taken on ci'oss-examination : There Avere also seven other photographs taken at the same time from Gregg, among Avhich Avas the likeness of a lady. I arrested Gregg under my OAvn responsibility. I had no Avarrant. The prisoners' counsel declared having no further questions to put to the deponent ; and this deposition having been read in the presence of the said prisoners, the deponent declares it contains the truth, and hath signed JOHN McLOUGHLIN. Sworn, taken, and acknoAvledged^ before me, on the day, month, I and year, and at the time, here- j inbefore mentioned. J (Signed) Chas. J. Coursol, J.S.P. .4.. .■! '€' t'S- :t 1| 'I i ; 58 I'ii^ hi' PROVINCE OF CANADA, Dislrict of Itontreal. rOLTCE COURT. Examination of Jamea Miissell Arm'uinton^ of the town of St. Albans, in tlie State of Vermont, one of the United States of America, merchant, now in the city of Montreal, taken on oath this eleventh day of November, in the year of our Lord one chou- sand ei^'ht hundred and sixty-four, in tlie Police Office in the Court-house, in the city of Montreal, in the District of Montreal aforesaid, before the undersi;:;ned Judji;c of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eu(];ene Lackey, Squire Turner Teavis, Alanianda Pope liruce, Charles Moore Swager, (jeor^e Scott, Ben- nett IL Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McCfrorty. Samuel Simpson Gregg, Dudley Moore, Thomas Bronsuon Collins, Marcus Spurr, and William IL Hutchinson, who arc now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Her Majesty the Queen and the United States of America, and our Statutes in that behalf made, with having committed, within the jui-isdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, Sfpure Swager, J urner Teavis, Alamanda Pope ]'ruce, Charles Moore (Jeorge Scott, Dennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simp- son (Jregg, Dudley Moore, Thomas ]>ronsdon Collins, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Ver- mont, one of the United States of America, being then and there armed with certain offensive weapons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the Statutes of the said State of Vermont, in such case made and 59 V provided, and against the peace and d'gnity of the said State. The deponent, Jainea llusscll Armington, ou his oiith di'poseth and saitli : On the afternoon of the 19th day of Ocicher hist, I was at St. Albans aforesaid. Between the hours of three and four of tlie clock in the afternoon of that day, I saw armed men in St. Alhans. I recognize the prisoners, Young, Doty, and Gregg, ha\ ing seen them in St. Alhans on that day. I saw tliem first on the street. They were on horseback, and were armed with pistols. They were in civilians' dress. I should judge they belonged to one party. They rode off together towards ti'c north. They did not go off very rapidly. I should judge thut they were about twenty of these armed men in all. They appei red to be strangers, and appeared to be acting in concert, I bought some gold of a stranger in the bank whom I afterwards learneA from M. "VV. Bairdsley, cashier of the bank, was one of the party. I heard shots fired by the 'party that rode off together, as I have mentioned. The foregoing depo- sition having been read over in the presence of the jirisoners so charged, the deponent declares that the same contains the truth. and hath signed J. RUSSELL AKMINGTON. Sworn, taken, and acknowledged^ before me, on the day, month, and year, and at the place, here- inbefore mentoned. (Signed) Chas. J. Coursol, J.S.P. The foregoing depositian having been made and read in the presence and hearing of tiie said prisoners, they are asked if they have any questsons to put to the deponent ; and they having declared, by ^h. Kerr, their counsel, that they had, the following evidence is taken in cross-examination : I saw shots fired by the party, and 1 saw shots fired at the party by people of St. Albans. This firing took place a little above the St. Albans bank. I should judge that Gregg had little more whiskers on; that is the only difference I see in his face. The prisoners' counsel declares having no further questions to put to the deponent ; and this deposition having been read in the presence of the said prisoners, the deponent declares it contains the truth, and hath signed J. RUSSELL ARMINGTON. Sworn, taken, and acknowledged^ before me, on the day, month, I and year, and at the place, here- | inbefore mentioned.' j (Signed) Chas. J. Coursol, J.S.P. I i ,i •if i ■. I a? ■■ 1^: ' *•:■ ^5,: M:' ■ i '\i «|^ ..'1,1 Stefl; t 60 TROVINCE OF CANADA, District of Montreal. pl^lice court. kf . Tlio examination of 3Iareu8 Wells Beanhley^ of tlic town of St. Albans, in tho State of Vermont, one of the United States of America, now in the city of Montreal, taken on oath this eleventh (lay of November, in the year of our Lord one thousand eight hundred and sixty-four, at tho Police Office in tho Court-house, in the city of Montreal, in tho District of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Sc^uire Turner Teavis, Alamanda Pope Bruce, Cliarlcs Moore Swager, George Scott, Bennett n. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William IL Hutchinson, who are now charged ])efore me, upon complaints made under oath before mo under the provisions of the Treaty between Her Majesty the Queen and the United States of America, and our Statutes in that behalf made, with having committed, within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen and the United States of America, to wit : — For that they, the said Samuel Eugene Lackey, Squire Tm-ner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Jose])h McGrorty, Samuel Simp- son Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William IL Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Ver- mont, one of the United States of America, being then and there armed with certain offensive weapons and instruments, to Avit : pistols commonly known and called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the Statutes of the said State of Vermont, in such case made and 61 provided, and against tho peace and vere l)aying for gold. I answered that we were r- >t dealing in Sdch article, and referred him to a Mr. Armingtoii, a morchait of the village. There were fiiur or five of the said armed ",sc men afterwards in St. Albans. I next saw Hutchinson in the Montreal gaol. I r .'^ , vked to Hutch- inson and to Mr. Saxe, both being present at the gaol, that I thought I had received very brutal treatment at the bank at St. Albans, at the hands of the leader of the gang. Hutchinson then remarked that the peopio of the Nortli were treating the people of the South in the same manner. The foregoing deposition havhig been read over in the presence of the prisoners so charged, the deponent declares it contains the truth, and hath signed M. W. BE.VRDSLEY. Sworn, taken, and acknowledged^ before v>i. n the day, month, (^ and year, and at the place, here- | inbefore mentioned. ) ClIAS. J. COUKSOL, J.S.P. ;il. '!rt ;',' ' ; Tne foregoing deposition having been made in the presence and hearing of the prisoners so charge %P. PROVIXCE OF CANADA, District of Montreal. POLICE COURT. The examination of Charles Alexander Marvin^ of the toAvn of St. Albans, in the State of Vermont, one of the United States of America, merchant's clerk, now in the city of Montreal, taken on oath this eleventh day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house, in tbc city of Montreal, in the District of Montreal aforesaid, before the imdersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope ]>ruce, Charles Moore S wager, George Scott, Ben- nett II. Young, Caleb McDowall Wallace, James Alexander Doty, Josej)h McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William II. Hutchinson, who are now charged before me, upon complaints made under oath before mc under the provisions of the Treaty betAvecn Her 63 Majesty the Queen, and the United States of America, and our Statutes in that behalf made, with having committed within the jurisdiction of the United States of America, the foUowing crime mentioned in the Treaty between Her ^tajesty tlic Queen, and the United States of America, to wit: — For that they, the said Samuel Eugene Lackey, Squire Turner Tcavis, Ala- manda Pope liruce. Charles Moore Swager, George Scott, I>eimett n. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Tho- mas Bronsdon Collins, Marcus Spurr, and William II. Iliitchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of tlie United States of America, being then i?nd there armed with certain offen- sive weapons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and balls and capjied, in and u{)on one Cyrus Newton Bisho[), feloniously did make an assault and liim the said Cyrus Newton Bishop ?n bodily fear and in danger of his life, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dt^llars current money aforesaid, of the moneys and property of tlie bank of St. Albans, a body corporate, consti- tuted and recognized by the laws of the said State of Vermont, and the said United States of America, from the j)erson and custody, and possession, and against the will of the said Cyrus Newton Bisliop, then and there feloniously and violently did steal, take, and carry away against the form of tlie Statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of the said State. The depo- nent, Charles xUexandcr Marvin, upon his oath deposeth and saith : I was in St. Albans aforesaid, on the nineteenth day of October last in the afternoon. I was standing on the step of my brother's store on Main street, at about a ([uarter past three o'clock in the afternoon of that day. The first ])erson I saw was the })risoner, Doty, on a black horse. I did not see that he had any arms. I saw about ten armed men there that afternoon. They were on horseback. They were all armed alike with revol- vers. I saw among this armed party the prisoners, Young, Doty, and Teavis. The prisoner, Toavis, was armed and on horseback also. The armed i)arty all rode off together on horseback about twenty minutes after I first saw them ; they seemed to be in great haste, and appeared all to act in concert together, and as one party. I heard a number of shots fired by this party. I saw the prisoner, Dudley Moore, at Waterloo, in the District of Bedford, on the Friday following the nineteenth of October last. I m d: M H ' I;. . 'ii •: ! 64 merely asked him one direct question, " When you were at Shel- " don Creek on the opposite side of the street, where was our pur- " suing party ?" and he answered, " Coming into sight on the opposite " side of the Creek." Sheldon's Creek is about ten miles north of St. Albans. When I said " Where was our pursuing party?" I re- ferred to a party of St. Albans people pursuing the armed party I have spoken of. The armed party that I have spoken of were all strangers to me. They were dressed in civiUans' clothes, most of them differing from each other. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares the same contains the truth, and hath signed CHARLES A. MARVIN. Sworn, taken, and acknowledged^ before me, on the day, month, and year, and at the place, here- inbefore mentioned. (Signed) Chas. J. Coursol, J.S.P. The foregoing deposition having been made and read in the presence and hearing of the said prisoners, they are asked if they have any questions to put to the deponent ; and they having declared, by ]Mr. Kerr, their counsel, that they had, the folloAving evidence is taken on cross-examination : I saw one man trying to fire upon the armed party. The prisoners' counsel declares having no further (juestions to put to the deponent ; and this deposition having been read in the presence of the said prisoners, the deponent declares it to contain the truth, and hath signed CIIAS. A. MARVIN. Sworn, taken, and acknowledged"^ before me, on the day, montli, 1 and year, and at the place, here- j inbefore mentioned. J CiiA.s. J. Coursol, J.S.P. i PROVINCE OF CANADA, District of Montreal. POLICE COURT. The examination of ITovy George Edso7i, Esquire, of the town of St. Albans, in the State of Vermont, one of the United States of America, Counsellor-at-law, now in the city of Montreal, taken on oath this tenth day of November, in the year of our Lord one thousand eight hundred and sixty-four, at the Police Office in the Court-house, in the city of Montreal, in the District of Montreal aforesaid, before the undersigned Judge of the Sessions of tlie I .:iil; 65 Peace in ami for the said city of Montreal, in the presence and licaring of Samuel Eugene Lackey, Scjuire Turner Teavis, Alanianda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Yoinig, Caleli McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas JJronsdon Cullins, Marcus Spurr, and William II. Hutchinson, wlio are now charged before me, upon complaints made under oath hefore nie under the provisions of the Treaty between Her Majesty the Queen and the United States of America, and our Statutes in that behalf made, with having com- mitted within the jurisdiction of the United States of America, the folloAMUg crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit: — For that they, the said Samuel Eugene Lackey, Squire Turner Tcavis, Alamanda Pope Bruce, Charles Moore Swager, (jeorgc Scott, Bennett H. Young, Caleb McDowall Wallace, James Alex- ander Doty, Joseph McGrorty, Sanniel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr and VVilliam h. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, one of the United States of America, and within the jurisdiction of the said L^nited States of America, being then and there armed with certain offensive weapons and instruments, to wit : pistols commonly called revolvers, loaded with powder and balls and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear, and in danger of his life, then and there felo'^i'^Msly did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person, and custody, and possesion, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and ca)'ry away, against the form of the Statutes of the said State of Vermont, in such case made and pro- -vided, and against the peace and digiiity of the said State. The dejwnent, Henry George Edson, upon his oath deposeth and saith : I liave practised law in the village of St. Albans, since the year 1844. The population of the village is between two and three thou- sand. It covers an area of about one mile square. There are between two and three hundred houses in the village. The first National bank, the American House, and the St. Alban's bank, are situated in the Main street, and in a centi-al part of the village, ard are not very far apart from each other. The Franklin County bank E IB S '"' f . ■■ I ■ ^ 1 ill. t-r. m| .;>..;:' '■-# '1 ' ■ ¥. •n?. •i ^"^'' '■ ii; '■ , t .■■* 60 M ■(■ :i /Si'ii, i-ji. 3! ■! Is on tlie same street, and abont midway between the First National bank and tlie St. Albans bank. I am accinainted with the laws of Vermont, and state that the volume now produced contains the (general statutes in force in Vennont ; and I say that the sections 22, 24, and 20, chapter 112 of said statutes, and sections 80 and 87 of chapter 15, and sections 1, 0,and 1) of chapter 31 of the said statutes, were on and prior to the nineteenth day of October last, and arc nuw in force in the State of Vermont, and form part of its general laws. I am acquainted with the seal of said State, and the signa- tures of the governor and secretary of state. The seal affixed to the certificate written upon the leaf between page 790 and the first page of the index of said volume, is the seal of the said State. The signature J. Gregory Smitli, subscribed to the said certificate, and the signature G. W. Bailey, jun., also thereto subscribed, arc respectively the signatures of the governor and secretary of state of the said State of Vermont. I also say that the seal affixed to the certificate upon the last page of the copies of complaint and ■warr.ant made and issued in Vermont, and produced and filed yes- terday is the seal of the said State, and the said signature of J. Gregory Smith, and G. V . Bailey, jun., thereto subscribed, are respectively the signatures of the Governor and Secretary of State of the said State. I k'.ow that robbery is a crime by the laws of the State of Vermont. I am one of the legal advisers of the St. Albans bank. I know that this bank has been carrying on busi- ness as banking corporation at St. Albans, under the laws of Vermont for several years past, and was so carrying on business on the nineteenth day of October last, I compared the copies of complaint and warrant before referred to, with the original com- plaint and warrant made and issued at St. Albans, in the State of Vermont, and declare them to be true and exact copies of the said originals respectively, and they are in the form prescribed by the laws of the said State of Vermont. The crime disclosed in the said complaint, and also in the commencement of this my exami- nation, is the crime of rubbery accoi-ding to the laws of the State of Vermont, and according to the laws of the United States of America. According to the laws of the State of Vermont, the duty of the town grand juror is to lodge complaint before justices of the peace, that is to say, Avithin the town to which he is elected. I know that Mv. Chellis F. SafFord, who lodged the complaint referred to, was on the nineteenth and twen- tieth days of October last, a grand juror, within the said town of St. Albans. No depositions are taken according to the laws of Vermont, prior to the issuing of a warrant, but the warrant is issued upon the information of the grand juror. By the laws of Vermont, upon the last mentioned days, a justice of the peace had 07 m!i u authority and jurisdiction to receive complaints such as I liavc spoken of within the county for which they are appointed, and also to issue warrants of apprehension in the form I have before spoken of upon which prisoners if arrested would be held for examination. This my examination is continued till to-morrow morning at ten o'clock, and I have signed 11. G. EDSON. Sworn, taken, and acknowledged,^ before me, on the day, mouth, i and year, and at the place j hereinbefore mentioned. j (Signed) Ciias. J. Coursol, J.S.P. On this day, the 11th day of November, in the year of our Lord 1864, the deponent, Henry George Edson, before named, reappears before me the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace, in and for the city of Montreal, and being re-sworn in the presence of the prisoners so chargeti, depose th and saitli, — The three documents now produced, pur- porting to be respectively " An Act to incorporate the Presi- " dent. Directors, and Company of the Bank of St. Albans;"' An Act to extend the time and continuing in force for a " limited period an Act to incorporate the President, Direc- " tors, and Company of the Bank of St. Albans ;" and " An Act " to extend the Ciiarter and increase the capital stock of the Bank " of St. Albans," are copies of the several acts of the Legislature of the State of Vermont, incorporating and relating to the St. Albans bank ; the seal affixed to the certificates appended to the said copies respectively, is tlie seal of the said State of Vermont, and the signatures J. Gregory Smith, and G. W. Bailey, jun., sub- scribed to the said certificates respectively, are the signatures of the governor and secretary of state of the said State respectively. The acts of which those documents are copies, were in force in the State of Vermont on the nineteenth day of October last, and still are so ; and the bank was on that day, and still is organized and tarry- mg on business, at St. Albans, in the State of Vermont, under the said Acts. The village and town of St. Albans before referred to, are within the jurisdiction of the United States of America, and are situ- ated in the State of Vermont, one of the United States of America. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares the same to con- tain the truth, and hath signed IL G. EDSON. Sworn, taken, and acknowledged,^ before me, on the day, month, I and year, and at the place [ hereinbefore mentioned. j (Signed) Ciias. J. Coursol, J.S.P. ^■n'i %•■ >■' •^:i.i ■/'■•* '"V'.f 'i 'r,'.'' .' m H w i -! ' '''■-■^\ ' ' '. 1 ; *i 68 < ■■' \v. i S^ ■ I ' The forcgoin-^ deposition having been made and read iu tlic pre- sence and hearing of the prisoners above named, they ai-e asked if they have any (juestions to put to tlie deponent ; and they liaving declared by their counsel, Mr. Kerr, that they had, the following evidence is taken in cross-examination : I think that a family resides in a part of the building in Avhich the St. Albans bank is carrying on business and where it carried on business on the nhieteenth of October last. I compared copies of the complaint and warrant made and issued in the State of Vermont^ and filed in these proceedings. I can- not state when I so com|»arcd the said charge and complaint with the original thereof. 'J'he said copies of complaint and warrant are in the liandAvriting of a man by the name of Taylor, of St. Albans. I do not recognize the handwriting in which the name William II. Hutchinson in the warrant and in the complaint appears. The name William II. Hutchinson appeared in the original ■warrant and complaint when I compared it with the copies. It is usual in our legal proceedings before magistrates to interpolate words in the same way that the Avords " AVilliam II. Hutchinson" are in the copies of complaint and warrant now produced, and S'ich alterations are not made in the margin. I can practise before any Circuit and District Court of the United States sitting in the State of Vermont. I have never been admitted to practise before the Superior Court sitting at Washington. The United States Statutes at Large published by Little & Brown at Boston, are received as authentic in all the Courts of the United States, without any fur- ther proof of their authenticity. I camiot say how many volumes there are ; I think about eleven. I am ac(juainted with the law of the United States upon the subject of treason, as most lawyers are, from general reading. The definition of treason against the United States would be the levying of war against them, or adhering to their enemies, or giving them aid or comfort within the United States or elsewhere, by any person owhig allegiance to the United States. I am i )t prepared to swear that the United States subjects residing in the Confederate States, and who have taken up arms against them, arc guilty of treason ; I leave that to the judicial tribunals of the country to decide. I have heard of an Act of the Congress of the United States of the nineteenth of June, one thou- sand eight hundred and fifty-two, commonly called the " Confisca- tion Act ;" I have read that Act. I know that a civil war has been raging between the United States and the so-called Confederate States for the last three years. The prisoners' counsel declares having no further questions to put to the deponent, and this deposition having been read in the 09 t^A a- prosenco of the said prisoners, the deponent declares it contains tl»e tnitli, and liath signed II. G. EDSON. t^worn, taken,, and acknowledged, ~) before me, on the day, montli, |^ and year, and at the place (' liereinbefore mentioned. j (Signed) Ciias. J. Coursol, J.S.P. PROVIXCF OF CANADA, ^ District of Montreal. ) POLICE COURT. The examination o^ James Sare, of the town of St. Albans, in the State of Vermont, one of the United States of America, merchant, now in the city of Montreal, taken on oath this 11th day of Novem- ber, in the year of our Lord one thousand eight hundred and sixty- four, at the Police Office in the Court-house, in the city of Montreal, in the district of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hcitringof Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett If. Young, Caleb McDowall Wallace, James Alex- ander Doty, Joseph McGrorty, Sanniel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William II. Hutchinson, who are now charged before me, ujx)n complaints made under oath before me under the jtrovisions of the Treaty between Her Majesty the Queen and the United States of America, and our Statutes in that behalf made, with having committed, within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Quclmi and the United States of America, to wit: — For that they, tlie said Samuel P'ugene Lackey, Squire Turner Teavis, Ala- manda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and William II. IIutehinsj' m M * <>' I I' ' I- .f 1 1' if lA l-'l > ' I : < 1' il 1 ■ * ■ M It f '' ^i' '■ ' ' ' ('! !'''# li:!: hi 70 the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and pro- perty of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody and pos- session, and against the will, of the said Cyrus Newton Bishop, tlrn and there feloniously and violently did steal, take, and carry away, against the form of the Statutes of the said State of Vermont, in sucli case made and provided, and against the peace and dignity of the said State. The deponent, James Saxe., upon his oath saith : I was in St. Albans aforesaid, on the nineteenth day of October last past, in the afternoon. I think on that afternoon I saw about fifteen men on horseback ; some of them were armed with revolvers, but how many I could not say. They all appeared to act in concert together. The prisoner Hutchinson, whom I now recognize, was one of the armed party at St. Albans, in that afternoon. I notice a little al>- sence of whiskers, and he had no spectacles on at that time as he has now. I saw Hutchinson for the first time in that afternoon, in the Franklin County bank. There was something said in my presence in regard of tlie price of gold. Mr. Bairdsley, the cashier of the bank, handed me the Boston Journal, and asked me to read the money article. I did so. So far as I could see, Hutchinson was unarmed at that time. I am not positive that I saAv him indi- vidually in the crowd of armed men on horseback. Hutchinson was in civilian's dress, and so also were the others. Tnc armed men I have spoken of left the town in a northerly direction, and went off in a body. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares that the same contains the truth, and hath signed JAMES SAXE. Sworn, taken, and acknowledged,^ before me, on the day, month, f and year, and at the j)lace [ hereinbefore mentioned. (Signed) GiiAS. J. Cuuksol, J.S.P. The foregoing deposition having been made and read in the pre- sence of the said prisoners, they arc asked if they have any ques- tions to put to the dci)onent ; and having declared by Mr. Kerr, their counsel, that they had, the following evidence is taken in cross-examination : My impression is, that he Hutchinson had a mou-itache. I think his beard went pretty much round his face, but I am not positive ; I have a strong impression. He was at about six or eight feet from me. He was nearly facing me. My impres- 1 • siou is, that he had on a black round crown felt hat. It was then about half-[)a8t three, or a ([uarter to four o'clock. It was not a very bright day. There v/as a good light in the r w 72 i" ''■iff :! •: I • ■ i ( :i^ •r ( rl PROVINCK OF CANAD.., 'f District of Montreal. ^ POLICE COURT. The exaniinatioii of Leonard Leamlrc Crons, of the town of St. Albans, in the State of Vermont, one of the United States of America, |»hoto:and ei^ht hundred and sixty-four, at the Police Office in the Court house, in the city of Montreal, in the District of Montreal aforesaid, before the unch^rsi^ned Judge of the Sessions of the Peace in and lor the said city of Montreal, in the presence and hearing of Samuel Kugene Lackey, Sfjuire I'urner Teavis, Alanianda Pope ]iruce, C'iiarles Moore Swager, Ceorgc Scott, Bennett IL Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson (iregg, Dudley Moore, Thomas l^ironsdon Collins, Marcus Spurr, and William II. Hutchinson, who are now charged before me, upon complaints made mider oath before me under the ]ennett H. Young, Caleb McDowall Wallace, James Alex- ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas lironsdon Collins, Marcus Spurr, and William 11. Jlutchinson, on the nineteenth day of October last past, at the town of St. All)ans, in the State of Vermont, one of the United States- of America, being then and there armed with certain offensive wea- jtons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and ball and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and pro- perty of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and pos- sesssion, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the Statutes of the said State (I \i t| si a| a 7r> V ;s. of Vermont, in .sucli case made and provided, and a^^alnst tlie peace and di;;nity of the said State. The deponent, Jjcofiio-d Leandre Cross, uj)on his oath deposeth and s.iith : I was in the villasje of St. Alhans on the nini'teenth day of ()eto))er last, in tlie afternoon. I saw a party of annod men there that after- noon : I shouhl think between twenty and thirty in nnmher. Tliis was between three and fonr o'cloek in the afternoon. Tlicy were on horseback, and in the street of the village. They were armed with revolvers, and dressed in ordinary civilians' clothes. I saw tiicre on that afternoon, forming part of the armed party I have spoken of, the prisoners Yonnj:;, IJruce, Spnrr, Lackey, and Collins, all of whom I now identify. They were all armed with revolvers, and were on horseback. The party apj)eareil to be acting in con- cert, and they rode oft" together ; and shortly after I saw them on the street they seemed to be in a hurry to get away. The prisoner Young shot at me with a revolver. 1 saw the jnirty shooting, and I stepped out of my photograjth saloon, and said to one of the party " What are you trying to celebrate here ?" Young answered, " I'll lot you know," and fired his revolver at me. lie then said "• Come out; let every one of you walk out into the street." Young then ordered Lackey to throw Greek fire into Mr. Atwood's ])uilding. Lackey threw a bottle, or something made of glass, against th(^ s'gn over the door of the building. Y'oung said then, " lioys march up the street, there is too great a crowd gathering round here." lie started oft", and fired again at me, or at all events the ])all passed near me. This was the same party that committed several acts of violence in the village that afternoon. They were strangers, with the exception of Young, whom I had seen there before. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares that the same contains the truth, and hath signed LEONARD L. CROSS. Sworn, taken, and acknowledged, ") before me, on the day, month, i^ and year, and at the i)lace ,' hereinbefore mentioned. I (Signed) Ciias. J. Coursol, J.S.I*. The foregoing deposition having been made and read in the ])re- sencc of the said prisoners, they are asked if they have any ques- tions to put to the deponent, and that having declared by Mr. Kerr, their counsel, that they had, and the following evidence is taken in cross-examination : I went to Stanbridge. I helped to arrest two of the prisoners i 74 at Stanljiid^o. I saw thou; hniidcuffeil. I was armed whou I was in Stanl)rid<^o, haviii"', icolver. I do not remember threat- ening to shoot any of tl, , ("i i.-a-^ in Stanbnd<;;e. I liad ray j»ist<)l in my hand when I i^.iit nito the room where the prisoners were. They were not liandenfted it that time. I mi^ht liave said that it' tlie man who had shot at me would ^ive me the same ehanee 1 wouhl shoot him. I only saw at St. Alhans one man who, after they had riddeii uj) the street, snai)ped a rille at tliem. It was a man of the name of (Jilson. The prisoners' counsel declares having no further ((ucstion to put to the deponent, and this deposition having been read in the pre- sence of the said ])risoners, the deponent declares it contains the tnitii, and hath signed LEONARD L. CllOSS. S'vorn, taken, and acknowledged,' before me, on the day, month, and year, and at the place [ hereinbefore mentioned. ) ciiAs J. C0UK.S0L, j.s.r. PKUVINCK OF CANADA, District of Montrctil. rOLICE COURT. r If? The examination 0^ Daniel Greenleaf ThompHon^ of the town of Montpelier, in the State of Vermont, one of the l-nited States of America, clerk, now in the city of Montreal, taken on oath this 12th day of November, in the year of our Lord one thousand eight hun- dred r,nd sixty-four, at the Tolice Office in the Court-house, in the city of Montreal, in the District of Montreal aforesaid, before the undersigned Judge of the Sessions of the Peace in and for the said city of Montreal, in the presence and hearing of Samuel Eugene Lackey, Stjuire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, IJennett IL Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon Collins, Marcus Spurr, and "William IL Hutchinson, who are now charged before me, upon complaints made under oath before me under the provisions of the Treaty between Iler Majesty the Queen, and the United States of America, and our Statutes in that behalf made, ■with having committed within the jurisdiction of the United States of America, the following crime mentioned in the Treaty between Her Majesty the Queen, and the United States of America, to wit: — For that they, the said Samuel Eugene Lackey, Sipiire Tunier # . <0 owall Diuel Uins, the tlie fade, tates I'een It:— Imer Tcavis, Alumanda I'ope ]>nu;(', Cliarlcs Mooro Swa^or, George Scott, Jkmiett 11. Yoim;^, Calel* McDowall NVallace, Jamw Alex- ander Doty, Joseph Me(irorty, Samuel Simpson Gie;:;^, Dudley Moore, Thomas lirousdon Collins, Mareu.s Spurr, and William 11. Ilutehinson, on the nineteenth day of October last i)ast, at the town of St. Alhans,in the State of Vermont, one of the I'nited States of America, bein^ then and then; ai'med with certain oftcnsive weapons and instruments, to wit: pistols connnonly known and called revol- vers, loadeil with powder and balls and capped, in and upon one Cyrus Newton Hisliop, fe^»niously did make an assault aiul him the said Cyrus Newton Hishop in IxKlily fear and in dan;j;er of his life, then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of Ihc said United States of Amei-ica, and of the value of seventy thousand dollars current money aforenaid, of the moneys and pro- perty of the bank of St. Albans, a body corporate, constituted and leco^xnized by the laws of the said State of Vermont, and the said United States of America, from the person and custody, and pos- session, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away against the form of the Statutes of the said State of A'ermont, in such case made and provided, and against the peace and dignity of the The deponent, Jhiniel Gruenlcaf Th(>))ij.tiion, upim his oath deposeth and saith : 1 have compared the documents produced and fded in this c;ise, purporting to be copies of three Acts of the Legislature of A''crmont incorporating and relating to St. Albans bank, ^vith the original Acts on file in the office of the secretary of state of the said State of Vermont, in which office I am a clerk, and declare the said documents to be true and exact copies of the said original Acts respectively. The seal affixed to each certificate appended to the said copies, is the seal of the said State of Vermont ; and the signatures, J. Gregory Smith, and G. W. Bailey, jun., subscribed to the said certificates, are the respec- tive signatures of the governor and secretary of state of the said State. The foregoing deposition having been read over in the presence of the prisoners so charged, the deponent declares that the same contains the truth, and signed DANIEL G. TlIOMrSON. Sworn, taken, and acknowledged,' before me, on the day, month, and year, and at the place here- inbefore mentioned. ClIAS. J. CoURSOL, J.S.P. l-f ,< I'! \ \b I i i- .J ^ I 1^ The fore^^oiu^ deposition liaviii;.' lieen nuule ami letul in the prc- pcnce and hearing of tlic said prisoners, they are asked if they liave any (jnestions to ])ut to the de))onent, and that having de- clared by Mr. Kerr, tlieir counsel, that they had none, this exami- nation is closed. Montreal, 12th November, lH(j4. 1)AN1I<:L (}. THOMPSON. Chap. J. Coirsol, J.S.P. Mr. '/olinson said lie understood tlierc was no further evidence to adduce, for tlie prosecution, as to the charge of robbery of the St. Albans bank. Having closed tlie evit'<7/niuulei'stood that no further evidence coidr()V(^cation, or unarmed, defenceless, and mu'csistinj^ citizciis, even Yankees, or to plunder for my own benefit. I am not prepared for the full defence of myself and n)y command without comnumication with my government at Richmond, and inasmuch as such communication is interdicted by the Yankee ;i;overnment, by laud and by sea, I do not think I can be ready for such full defence under thirty days, durin;:; which time I hope to be able to obtain material important testimony without the consent of said Yankee government, from llichmond. And further the Examinant saith not, and hath signed, the fore- ^':oing having been previously read in his presence. (Signed) BENNETT H. YOUNG. Taken and acknf)wledged l)efore^| me, at the Police Olfice in the ( said city of Montreal, the day and year above mentioned. (Signed) Ciias. J. Coursol, J.S.P. ■::4''r'1 i;ii >■«■ n 11: •■■■ 80 Lieutenant Yoiuijs Comnussions. CoNi'i;i)KRATE States of America, \ War Di;i'ARTMent, [ Riclmiond, June lOtli, 1804. ) Sir, — You arc hcrol)y inffirmod that tlic President lias appointed you First Lieutenant, under tlie .'vet 121, a}>proved February 17th, 1864, in the Provisional Army iu the service of the Confederate States, to rank as such from the sixteenth day of June, 1864. Should the Senate at theii* next session advise and consent thereto, von will he commissioned accordin;:lv- Immediately on receipt hereof, please to communicate to this Department, through tlie Adjutant and Inspector (reneral's Office, your acccjttanco or iion-accei)tance of said appointment, and, with your letter of acccjitance, return to the Adjutant and Inspector (icneral the oath herewith enclosed, properly filled up, subscribed, and attested, reporting at the same time your age, residonce, when appointed, and t'le State in which you Avcre born. Should you accejit, you will report for duty to (Signed) Ja.s. A. Seddun, Secretary of War. Lieut. Bennet IL Young, i*tc., c^c, P.A.C.S. Confederate States of America, War Department. Richmond, Va,, June lOtli, 1864. Lieut. B. K. Young is hereby authorized to organise for special service, a company not to exceed twenty in number from those who belong to the service and are at the time beyond the Confederate States. They Mill be entitled to their pay, rations, clothing, and trans- portation, but no (/Jier comjieii'^^ation for any service which I'" y may 1)0 called upon to render. The organisation will l)e under the control of this Department, and liable to be disbaiMled at its pleasure, and the members returned to their respective companies. Jas. a. Seddon, Secretary of War. ' i. ;i' * ■.til TROVINCE OF CANADA, District of Montreal, CITY OF MONTUHAL. 81 POLICE OFFICE. Samuel Eugene Lackey^ late of the town of St. Albans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, E3(iuire, Judge of the Sessions of the Peace in and for the city of Montreal, this twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-four, for that the said Samuel Eugene Lackey and others, to wit : Bennett II. Young, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons- don Collins, Marcus Sjturr, and William 11. Hutchinson, on the nhieteenth day of October last past, at the town of St. Albans aforesaid, in the said State of Vermont, and within the jarisdiction of the said United States of America, l)eing then and tliere armed with certain offensive weaj)ons and instruments, to wit, pistols, com- monly known and called revolvers, loaded wirti powder and balls, and capped, in and upon one Cyrus Newton Jiishop feloniously did make an assault, and him, the said Cyrus Newton Bishoji, in bodily fear and in danger of his life then and there feloniously did put, and a certain sinn of money, to wit, to the amount of seventy thousand dollars ctuTont money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and ])i'operty of the bank of St. Albans, a body corj)onite, constituted and recognized by the laws of tiie said State of Vermont, and of the said United States of Americii, from the person, custody and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of tlie statutes of the said State of Vermont in such case made and provided, and against the i)eace and lignityof the said State ; and liie said charge being read to the said Samuel E. Lackey, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C, Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L, Cross, James U. Armington, Charles A. Marvin, George Roberts, llos- well A. Ellis, George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus W. Beardsley, James Saxo, Daniel G. Thomp- son, and John O'Leary, — being severally examined in his presence, the said Samuel Eugene Lackey is now addressed by mo as follows: " Having heard the evidence, do you wish to say anything in "answer to the charge? You are not obliged to say anything, " unless you desire to do so ; but whatever you say will be taken m M ;vt G •w f •■, If r V ^ ^* ■ . 1' t '!| l«i : ( 82 " clown in writing, and may be given in evidence against you at " your trial." Whereupon the said Samuel IJugene Lackey snitli as follows : I am a native of the Confederate States, of which government I now owe allegiance. I have been thrown upon this government not designedly, but by the fortimes of war. I have violated no law of this country, or of (xreat IJritain, unless it be unlawful for a Confederate soldier, driven by the hard fate of war, to ask the protection of the Britisli flag. I am a soldier of the Confederate States army, having been recognized as such by the so-called United States govcnnnent, from the fact of having been held as a prisoner of war, my command now being held as ])risoners of war at Camp Douglas, 111., from which place 1 made my escape through the merceiiai-y ciiaracter of these gallant Yankees, a people who make Avar for plunder, and arc bravest when they make war upon women and children. 1 have, during the captivity of my com- mand, been detached for especial service inside the enemy's lines, under the command of Lieut. IJennett II. Young. And further tht' Lxamiuant snith not, and hath sigiied, the fore- going having bec-.i previously read in his 'presence. (Signed) SAMUEL EUGENE LACKEY Taken and acknowledged before ^ me, nt the Police (>9ice in the ( salf; city of Montreal, the day and year a1)ovc mentioned, (Signed) Ciias. J. Couksol, J.S.P. k'- ' PROVIXCK OF CAXADA, District of' Monlri'dl, CITY OF MONTiniAL. POLICE OFFICE. 3I(ircHS S/nirr, late of the tow,; of St. Albans, in the State of Vermont.^ one of the United Stat 's of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, this twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-four, for that the said INIarcus Sjmrr, and others, to wit: Samuel E\igene Lackey, S([uire Turner Teavis, Alamanda Pojie Lruce, Charles Moore Swager, Bennett II. Y'oiuig, Caleb McDowall "Wallace, ^amos Alexander Doty, Joseph McOrorty, Samuel Simpson Gregg, Du.iley Moore, Thomas Pronsdon Collins, George Scott, and William 11. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans aforesaid, in the said State of Vermont, and within the jurisdiction of the said United States of / --tii^^m*. 83 America, beiu;; tlicn and there armed with certain offensive weapons and instruments, to wit, pistols, commonly known and called revolvers, loaded with powder and halls, and capped, in and upon one Cyrus Newton Bishop, feloniously did make an assault, and him, the said Cyrus Newton IJishop, in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit, to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and ])roperty of the bank of St. Albans, a body corporate, constituted and reco;i;iiizc'd by the laws of the said State of Vermont, and of the said United States of America, from the person, custody and possession, and a;:ainst the will, of the said Cyrus Newton lJisbop,theu and there felo- niously and violently did steal, take, and carry away, against the form of the statutes of the ^aid State of Vermont in such case made and provided, and against the peace and dignity of the said State; and the said charge being read to the said Marcus Spnrr,and the witnesses for the prosecution, — Cyrus Newton IJishop, Edward ('. Knight, James ¥. Desrivieres, Aaron H. Kemp, Leonard M. Crost!, James U. Arniington, (.'harles A. Marvin, (Icorge Roberts, Iloswell A. Ellis, George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus AV. IJeanlsley, James Saxe, Daniel (J. Thompson, and John < )'Lfary, — being severally examined in his presence, the said Marcus Spurr is now addressed by me as follows: " Having heard the evidence, '• do you wish to say anything in answer to the charge? Von are " not obliged to say anything, unless you desire to do so ; but what- " ever you say will be taken down in writing, and may be given in "evidence against you at your trial." Whereupon the said il/ur^'Ui* Spurr saith as follows: Am a native of Kentucky ; an enlisted soldier of the Confederate States army, and my time has not yet expired. I owe no allegi- ance to the so-called United States, but to the Confederate States of America. I was held as a prisoner of war in a Yankee; Bastile, and by bribing a " Yankee p(i//-tri'>t'" and by daring, escaj^od. Afterwards was engaged at ditVerent times with soldiers of the afore- mentioned army in doing duty in the Yankee States. L;ist sunnner at Chicago, 1 placed myself under the command of Lieut. Young. I was in the States when the raid upon St. Albans, Vt., was con- cocted by Lieut, Y'oung and others. What I may have done at St. Albans, I did as a soldier of the Confederate Slates army, and in accordance with orders from Lieut. Young of said army, hi doing this, I have violated no law of Canada or Great l>ritaii>. I have lost kindred, and have had kindred plundered. h^'-'}\ ■r ^ ;••! ..,1 84 And further Examinant saith not, and hath signed, the foregoing having been previously read in his presence. (Signed) MARCUS SPURR. Taken and acknowledged before^ me, at the Police Office in the I said city of Montreal, the day [ and year above mentioned. J (Signed) Chas. J. Coursol, J.S.P. V i i.: i'- ill! PROVINCE OP CANADA, ) District of Montreal, \ POLICE OFFICE. CITY OF MONTREAL. ) Alavianda Pope Bruce, late of the town of St. Albans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, this twelfth day of November, in the year of our Lord one thou- sand eight hundred and sixty-four, for that the said Alamanda Pope Hrucc and others, to wit : Bennett II. Young, Samuel Eugene Lackey, Scjuire Turner Teavis, Charles Moore Swager, George Scott, Caleb McDowall Wallace, James Alexander Doty, Jose[)h McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons- don Collins, Marcus S])urr, and William II. Hutchinson, on the nhieteenth day of October last past, at the town of St. Albans aforesaid, in the said State of Vermont, and within the jurisdiction of the said United States of America, being then and there armed with certain otfensive weapons and instruments, to wit, pistols, com- monly known and called revolvers, loaded Avith poAvder and balls, and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him, the said Cyrus Newton I3ishop, in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit, to the amount of seventy thousand dollars carrent money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized l)y the laws of the said State of Vermont, and of the said United States of America, from the person, custody and possession, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the statutes of the said State of Vermont in such case made and provided, and against the peace and dignity of the said State ; and the said charge being read to the said Alamanda Pope Bruce, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desriviercs, Aaron B. Kemp, Leonard 1 85 L. Cross, James R. Arniin^^ton, Charles A. Marvin, George Roberts, RoswcU A. Ellis, George W. Fairchild, John McLoughlin, Ilonr}' N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp- son, and John O'Lcary, — being severally examined in his presence, the said Alamanda Pope Rruce is now addressed by me as follows: " Having heard the evidence, do you wish to say anything in " answer to the charge ? You arc not obliged to say anytliing, " unless you desire to do so ; but whatever you say will be taken " down in writing, and may be given in evidence agahist you at " your trial." Whereupon the said Alamanda Pope Bruce saith as follows : I am a native of Kentucky, and am a Confederate States soldier. My term has not expired. I was made prisoner in Jime last by Yankee troops, and made my escape from a car whilst being carried as such to the Yankee prison at Rock Island. I joined Lieut. Young at Chicago last August. I have violated no laws of Canada or Great Britahi ; whatever I may have done in the so-called Tnited States has been an act of war, as my government the Confederate States, are at war with the Yankees, and I owe allegiance to it, and am sworn to do my duty as a soldier. I am told that I am accused of having shot Morrison at St. Albans ; if I had shot him it was my duty to do so. I am taken for a comrade wiio did do it who is not here. I do not say this to screen myself, but as it is the truth I justify the act as an act of war, though Morrison was not aimed at, but the armed man who skulked behind him. I have lost kindred in tliis war, a cousin brutally murdered in Camp Douglas whilst unarmed, and doing notliing to provoke it. Yankee plundering and cruel atrocities without parallel, provoked the attack on St. Albans as a mild retaliation. And further the Examinant saith not, and hath signed, the fore- going having been previously read in his ]iresence. (Signed) ALAMANDA POPE BRUCE. Taken and acknowledged before me, at the Police Office in the said city of Montreal, the day ( and year above mentioned. ) (Signed) CiiAS. J. CoriisoL, J.S.P. cV.; PROVINCE OF CAXADA, District of Montreal, CITY OF MONTREAL. POLICE OFFICE. Charles Moore Swager, late of the town of St. All)ans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Escpiire, Judge of the Sessions of the Peace in and for the city of Montreal, '■ m ..t ■J: ,;f l! ill H i ■ 'I ^ 86 this twelfth day of Nov':.»mbcr, in the year of our Lord one thousand cijTht hundred and sixty-four, for that the said Charles Mooro Swagcr and others, to wit: liennctt 11. Young, Samuel Eu A .v.*< ',t''vv.i ■i'" 'Ua if- ' 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 If 1^ 1^ UUu m Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y 14580 (716) 872-4503 l/^ ¥ :■ ^it 3?! 88 the peace and dignity of the said State ; and the said charge being read to the said Caleb McDowall Wallace, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desrivleres, Aaron B. Kemp, Leonard L. Cross, James R, Armington, Charles A. Marvin, (jeorge Roberts, Roswell A. Ellis, George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and John O'Leary, — being severally examined in his presence, the said Caleb McDowall Wallace is now addressed by me as follows : " Having " heard the evidence, do you wish to say anything in answer to the " charge ? You are not obliged to say anything, unless you desire *' to do so ; but whatever you say will be taken down in writing and '* may be given in evidence against you at your trial." Whereupon the said Caleb McDowall Wallace saith as follows : I am a native of Kentucky ; but at the incipiency of the war now pending between the United States and the Confederate States of America, I was living in the State of Texas, — one of the Con- federate States of America. I owe no allegiance to the United States, but my allegiance is due solely to the Confederate States of America. Whatever I may have done at St. Albans, I did as a Con- federate soldier, and in obedience to the order and under the instructions of Lt. B. H. Young, — a commissioned officer of the Confederate States of America, — my commander at that time. I have not violated any law of Canada or Great Britain. And further the Examinant saith not', and hath signed, the fore- going having been previously read in his presence. (Signed) CALEB McDOWALL WALLACE. Taken and acknowledged before^ me, at the Police Office in the 1 • said city of Montreal, the day [ and year above mentioned, j (Signed) Ciias. J. Coursol, J.S.P. PROVINCE OF CANADA, District of Montreal., CITY OF MONTREAL. POLICE COURT. Joseph McCrrorty, late of the town of St. Albans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, thia twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-four, for that the said Joseph McGrorty and others, to wit : Bennett H. Young, Samuel Eugene Lackey, Squire Turner Teavis, Charles Moore Swager, 'reorge Scott, Caleb McDowall Wallace, James Alexander Doty, Alamanda 89 Pope Bruce, Samuel Simpson Gregg, Dudley Moore, Tliomas Bronadon CoUi'is, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans aforesaid, in the snid State of Vermont, and within the jurisdiction of the said United States of America, being then and there armed ■with certain offensive weapons and instruments, to wit, pistols, com- monly known and called revolvers, loaded with powder and balls, and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him, the said Cyrus Newton Bishop, in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit, to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and i)roperty of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and of the said United States of America, from the person, custody, and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the statutes of the said State of Vermont in such case made and provided, and against the peace and dignity of the said State ; and the said charge being read to the said Joseph McGrorty, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross, James R. Armington, Charles A. Marvin, George Roberts, Ros- well A. Ellis, George W. Fairchild, John McLoughlin, Henry N. "Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp- son, and John O'Leary, — being severally examined in his presence, the said Joseph McGrorty is now addressed by me as follows : " Having heard the evidence, do you wish to say anything in You are not obliged to say anything. « answer to the charge ? " unless you desire to do so ; but whatever you say will be taken " down in writing, and may be given in evidence against you at (( j> your trial. Whereupon the said Joseph Mc Grorty saith as follows : I am no criminal, nor are any of my comrades. The Yankees know this, and if we had been captured within their boundaries, either before or after the capture of St. Albans, we would have been tried, not by civil law, but by a military commission or drum-head court-martial. But they found us on a neutral territory, and now seek by Yankee ingenuity and the boasted influence of their government to get us into their power. I am a native of Ireland, and a naturalized citizen of the Confederate States of America, and of the State of Texas, and owe no allegiance to the United States, with which my country is at war. I am also a soldier of mi ■■■, :«.(; '• -i V '( ■ ■■■; 7.;,:. >'■ Vr ■1. ■ ,v lit .4'''.''-i '■ ' ■M»;. II '^ •m^ ■ If:.. It'll i i i|. m m m I 94 ■iti: James R. Armington, Charles A. Marvin, George Roberts, Roswell A. Ellis, George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus \V. Bcardsley, James Saxo, Daniel G. Thomp- son, and John O'Leary, — being severally examined in his presence, the said Dudley Mooro is now addressed by me as follows : " Having heard the evidence, do you wish to say anything in *' answer to the charge ? You are not obliged to say anything, " unless you desire to do so ; but whatever you say will be taken " down in writing, and may be given in evidence against you at "your trial." Whereupon the said DiidUij Moore saith as follows : Whatever I may have done at St. All)ans I did as a Confederate soldier ; acting under the direction and in obedience to the order of Lieutenant Young, of the Confederate States army. I am a native of Kentucky, and owe no allegiance to the United States, but to the Southern Confederacy. I have violated no laws of Canada or Great Britain. And further the Examinant saith not, and hath signed, the fore- going having been previously read in his presence. (Signed) DUDLEY MOORE. Taken, and acknowledged before^ me, at the Police Office in the said city of ^lontrcal, the day and year above mentioned. (Signed) Chas. J. Coursol, J.S.P. Iff ■ii; 4'= ■■ PKOVINCE OF CANADA, District of Canada, CITY OF MONTREAL. POLICE OFFICE. TJiomas Bronsdon Collins, late of the town of St. Albans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, this twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-four, for that the said Thomas Bronsdon Collins, and others, to wit : Bennett H. Y'^oung, Samuel Eugene Lackey, Squire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dud- ley Moore, Marcus Spurr, and WilUam IL Hutchinson, on the nineteenth day of October last past, at the town of St. Albans aforesaid, in the said State of Vermont, and within the jurisdiction of the said United States of America, being then and there armed with certain offensive weapons and instruments, to wit, pistols, com- monly known and called revolvers, loaded with powder and balls, 'I '■ ■;.t 95 and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him, the said Cyrus Newton Bishop, in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit, to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and j)roperty of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and of the said United States of America, from the person, custody and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the statutes of the said State of Vermont in such case made and provided, and against the peace and dignity of the said State ; and the said charge being read to the said Thomas Bronsdon Collins, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross, James II. Armington, Charles A. Marvin, George Roberts, Iloswell A. Ellis, George W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and John O'Leary, — being severally examined in his presence, the said Thomas Bronsdon Collins is now addressed by mo as follows ; " Having heard the evidence, do you " wish to r-ay anything in answer to the charge 'i You are not " obliged to say anything, unless you desire to do so ; but what- " ever you say will be taken down in writing, and may be given in " evidence against you at your trial." Whereupon the said TJiomas Bronsdon Collins saith as follows : I am a native of Kentucky and a commissioned officer of the army of the Confederate States at war with the so-called United States. I served under the command of Gen. John Morgan, and became separated from it at the batt' ; of Cynthiamia, Kentucky. Having eluded the Yankees, I joii . 1 Lt. Young afterwards at Chicago, knowing it to be my duty to my government as well as to myself never to desert its cause. I o.ve no allegiance to the so-called United States, but am a foreigner and public enemy to the Yankee Government.. The Yankees dragged my father from his peaceful fireside and family circle, and imprisoned him in Camp Chase, Avhere his sufferings impaired his health and mind, and my grandfather has been banished from Kentucky by brute Burb ridge. They have stolen negroes and forced them into their armies, leaving their women and children to starve and die. They have pillaged and burned private dwellings, banks, villages and depopulated whole districts, boasting of their inhuman acts as deeds of heroism and exhibiting their plunder in northern cities as I'u'- 'ft. •!■■■.' f,' -,•»»'■ -III, B'y Ml; t , !,;? m •;•! « f^ •i , ' 96 t, ■'! ■'■h % f if ' » trophies of Federal victories. I have violated no laws of Canada or Great Britain. Whatever I may have done at St. Albans, I did as a Confederate officer acting under Lt. Young. When I left St. Albans, I came to Canada solely for protection. I entered a hotel at Stanbridge unarmed and alone, and was arrested and handcuffed by a Canadian magistrate (Whitman) assisted by Yan- kees. He had no warrant for my arrest, nor had any sworn com- plaint been made to him against me. About 'f9,300 was taken from me when arrested, part Confederate booty hiwfidly captured and held by me as such, and part of my own j)rivate funds. 1 ask the res- toration of the money taken from me and my discharge as demanded by the rules of international law. The treaty under which my extradition is claimed, applies to robbers, murderers, thieves, and forgers, 1 am ncitlicr, but a soldier servhig my country in a war commenced and waged against us by a barbarous foe in violation of their own constitution, in disregard of all the rules of warfare as interpreted by civilized nations and christian people, and against Yankees too Avise to expose themselves to danger, while they can buy mercenaries and steal negroes to fight their battles for them, who wliilst prating of neutrality seduce your own people along the border to violate the proclamation of your august Sovereign by joining their armies, and leave them when captr-ed by us to lan- quish as prisoners in a climate unwholesome to thcin. If I aided in the sack of the St. Albans banks, it was because they were public institutions, and because I knew the pocket-nerve of the Yankees to be the most sensitive, that they would suffer most by its being rudely touched. I cared nothing for the booty, except to injure the enemies of my country. Federal soldiers are bought up at -ii^lOOO a head, and the capture of 8200,000 is equivalent to the destruction of 200 of said soldiers. I therefore thought the expe- dition " would pay". I " guess" it did in view of the fact also, that they have wisely sent several thousand soldiers from the "bloody front" to protect exposed points in the rear. For the part I took I am ready to abide the consequences, knowing that if I am ex- tradited to the Yankee butchers, my government can avenge if not protect its soldiers. And further the Examinant saith not, and hath signed, the fore- going having been previously read in his presence. (Signed) THOMAS BRONSDON COLLINS. Taken and acknowledged before^ me, at the Police Office in the I said city of Montreal, the day j and year above mentioned. J (Signed) Chas. J. Coursol, J.S.P. 91 ; to ; up the )xpe- , that oody took cx- f not fore- S. i'noVINC. OF CANADA, Di»(rirl of Montreal, CITY OF MONTRKAL. POLICE OFFICE. Jiimex Ah'xundi'r Dotji^ hitc of the town of St. ADtaiis, in the 'r^X'AiQ of Vermont, one of the United States of Ameriea, stand^^i cliarged l)efore the undersi^^ned, Charles Joseph Coursol, Enquire, Jud;^e of the Sessions of the Peace iu and for the city of Montreal, this twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-four, for that the said James Alexander Doty and others, to wit : Lenuett II. Young, Samuel Eugene Lackey, Scjuire Turner Teavis, Alamanda Pope Bruce, Charles Moore Swager, (Jeorge Scott, Caleb McDowall Wallace, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons- don Collins, Marcus Spurr, and William II. Hutchinson, did, on tlie nineteenth day of October last past, at the town of St. Albans aforesaid, in the said State of Vermont, and within the jurisdiction of the said United States of America, being then and there armed with certain offensive weapons and instruments, to wit, pistols com- monly known and called revolvers, loaded with powder and balls, and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him, the said Cyrus Newton Bishop, in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit, to the amount of seventy thou- sand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money afore- said, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vennont, and of the said United States of America, from the person, custody and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the statutes of the said State of A^ermont in such case made and provided, and against tlie peace and dignity of the said State ; and the said charge being read to the said James Alexander Doty, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desrivieres, Aaron B. Kemp Leonard L. Cross, James 11. Arming- ton, Charles A. Marvhi, George Roberts, Roswell A. Ellis, George W. l^iirchild, John McLoughlin, Henry N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and John O'Leary, — being severally examined in his presence, the said James Alex- ander Doty is now addressed by me as follows : " Having heard "• the evidence, do you wish to say any thin in answer to the charge ? " You are not obliged to say anything, unless you desire to do so ; '^ but whatever you say will be taken down in writing, and may be ^' given in evidence ai!;ainst you at your trial." ' ' ' ■,' , : * ; . ■ ;,'i .■••ii,.' X')4 : '}"M ■'■■m (Mi ■ l|f|i '•.'•> 08 Whereupon Use said James Aleratuhr Dofi/ saitli as follows: I am a Confeilerato soldier. What I may have done at St. Albans was by order of Lieutenant Young, an officer in the army of the Confederate States. And further the Examinant saith not, and hath signed, tlie fore- going liaving been previously read in his presence. (Signed) JAMP^S ALEXANDER DOTY. Taken and acknowledged before^ me, at the Police Office in the ( said city of Montreal, the day [ and year above mentioned, j (Signed) CiiAS. J. Coursol, J. S. P. PROVINCE OF CANADA, District of Montr enl, CITY OF MONTREAL. POLICE COURT. Samuel S. Greyy, late of the town of St. Albans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, this twelfth day of November, in the year of our Lord one thou- sand eight hundred and sixty-four, for that the said Samuel Simp- son Gregg and others, to wit: Bennett H. Y'oung, Samuel Eugene Lackey, Squire Turner Toavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Dudley Moore, Thomas Brons- don Collins, Marcus Spurr, and William H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, and within the jurisdiction of the said United States of America, being then and there armed with certain oflfensive weapons and instruments, to wit : pistols commonly known and called revolvers, loaded with powder and balls, and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him the said Cyrus Newton Bishop in bodily fear and in danger of his life then and there feloniously did put, and a certain sum of money, to wit : to the amount of seventy thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corjiorate, constituted and recognized by the laws of the said State of Ver- mont, and the said United States of America, from the person, custody, and possession, and against the will, of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the statutes of the said Stite of Vermont, in such case made and provided, and against the \H' )ans, I said rtain iown )ed, an land tain liars Ithe I the ite, ''er- hon, bus jal, laid the 09 peace and dignity of the said State ; and the said charf^e hoin^ read to the said (Samuel Simpson Greg^j;, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desrivieres, Aaron B. Kemp, Leonard L. Cross, James R. Armington, Charles A. Marvin, George Roberts, Roswcll A. Ellis, (Jeorge W. Fairchild, John McLoughlin, Henry N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and John O'Leary, — being severally examined !;i his presence, the said Samuel Simpson Gregg is now addressed by me as follows : " Having heard the evidence, do you wish to say anything in " answer to the charge ? You are not obliged to say anything, " unless you desire to do so ; but whatever you say will be taken " down in writing, and may be given in evidence against you at " your trial." Whereupon the said Samuel Simpson Oregg saith as follows : I was bom and reared in the State of Kentucky. I am a Con federate soldier. My term of service is not yet expired. I owe no allegiance to the United States Government. Whatever I may have done in the month of October last, in St. Albans, in a military point of view I did as a Confederate soldier, o cling under orders of Lieut. B. H. Young, Confederate. And further the Examinant saith not, and hath signed, the fore- going having been previously read in his presence. (Signed) SAMUEL S. GREGG. Taken and acknowledged before me, at the Police Office in the said city of Montreal, the day, and year above mentioned. (Signed) Chas. J. Coursol, J.S.P. ^:;i' DA,) POLICE OFFICE. PROVINCE OF CANADA, District of Montreal^ CITY OF MONTREAL Squire Tamer Teavis, late of the to^vn of St. Albans, in the State of Vermont, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, this twelfth day of November, in the year of our Lord one thou- sand eight hundred and sixty-four, for that the said Squire Turner Teavis and others, to wit : Bennett H. Young, Samuel Eugene Lackey, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Brons- don Collins, Marcus Spurr, and William H. Hutchinson, (m tlie nineteenth day of October last past, at the town of St. Albans r^foresaid, in the said State of Vermont, and within the jurisdiction ', t ;■ r .•' I .■ 100 ^'r^ « of the said United States of America, being then and there armed with certain offensive weapons and instruments, to wit, pistols, com- monly known and called revolvers, loaded with powder and balls, and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and him, the said Cyrus Newton Bishop, in bodily fear and in danger of his life then and there feloniously did put, and a certain sura of money, to wit, to the amount of seventy thousand dollars, current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of the moneys and property of the bank of St. Albans, a body corporate, constituted and recognized by the laws of the said State of Vermont, and of the said United States of America, from the person, custody and possession, and against the will of the said Cyrus Newton Bishop, then and there feloniously and violently did steal, take, and carry away, against the form of the statutes of the said State of Vermont in such case made and provided, and against the peace and dignity of the said Stale ; and the said charge being read to the said Squire Turner Teavis, and the witnesses for the prosecution, — Cyrus Newton Bishop, Edward C. Knight, James F. Desrivie^es, Aaron B. Kemp, Leonard L. Cross, James R. Armington, Charles A. Marvin, George Roberts, Roswell A. Ellis, George W. Fairchild, John ^IcLoughlin, Henry N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp- son, and John O'Leary, — being severally examined in his presence, the said Squire Turner Teavis is now addressed by me as follows : '• Having heard the evidence, do you wish to say anything in answer '• to the charge ? You are not obliged to say anything, unless you "• desire to do so ; but whatever you say will be taken down in '' writing, and may be given in evidence against you at your trial." Whereupon the said Squire Turner Teavis saith as follows : I am a native of Kentucky, a soldier of the Confederate States army. I joined the said army on the 3rd of September 1862. I owe my allegiance to the Confederate Government, and not to the infa- mous and tyrannical Yankee Government. Whatever I may have done at St. Albans, I did as a soldier of the Confederate army ; not on my own responsibility, but in obedience to the orders of Lieut. Y'oung of said army. I have violated no law of Great Britain or Canada. And further the Examinant saith not, and hath signed, the fore- going having been previously read in his presence. (Signed) SQUIRE TURNER TEAVIS. Taken and acknowledged before "^ me, at the Police Office in the l^ said city of Montreal, the day f and year above mentioned. j (Signed) CiiAS. J. Coursol, J.S.P. :cat )re- 101 Mr. Devlin said it was now the time when the counsel for the prisoners should enter upon their defence. One of the cases against the prisoners had been closed, and the Court should now call upon them to establish their defence. He hoped the Court would call upon the counsel for the accused, to proceed at once ; the counsel for the prosecution being prepared, when the gentlemen on the other side had closed their defence, to argue this case, and obtain the judgment of the Court before being called upon to go on now with other cases against the prisoners. Mr. Kerr. — The learned counsel certainly made a very extraor- dinary demand, and one which the Court would assuredly look upon with no favor. What was to bo understood by this application ? AVhat case did his learned friend allude to when he asked that the counsel for the prisoners should now be called upon to make their defence ? Was it the case of the First National bank, or the St. Albans bank ? When the facts connected with the First National bank were under consideration, it was distinctly understood by the counsel for the defence, that all the cases Avere to be proceeded with, and that after they were closed, the accused should be called upon to make their defence. In proof of this understanding, the cases of the two banks had been proceeded with simultaneously. But although this was the case, the counsel on the other side, in order to put themselves iri possession of the prisoners' means of defence, and discover their weak points, and fortify their position that those means could not bo in any subsequent case, now called upon the Court to compel the accused to make their defence. The distinct understanding between the prosecution and the defence was, that all the cases were to be gone through with, as he had already stated. ' His Honor the Judge was a witness of the correctness of the assertion ; and the irrefutable CA-idcnce of the fact was, that the two cases of the two difterent banks at St. Albans were proceeded with at the same time. The counsel for the defence had made no objection when the second case was called upon, although at the time the first was not half finished. And now because one of these cases chraiced to be finished, the other side called this side to enter upon the defence. It would be useless for the counsel on behalf of the accused, to encumber them- selves and the Court, and to fritter away time with six diflferent defences, especially when they intended to limit themselves to one defence on the merits, to one defence in all the cases. The counsel for the accused would bind themselves to close their defence in a reasonable time. On Saturday evening the counsel on both sides had agreed upon a delay, and had approximately settled the con- ditions of it. In fact the counsel for the accused were under the impression the agreement was closed, and would be carried out ; til :;■!;■; ■' r ■■15 ■ '■^f |1 ■fth ■■;!ii ■■)'"■' ;;•*■]■■■ I- , •I. \irs. %' . -,<■.■ ••/', ■ ;.;■;. •u / . „r. ■■ m fci ;■■! i,ii i m /.a alt! Il4.*i!! ■ I If 1 "f1 Ml - v : , % \ t iff f ■»' ! 102 and he was exceedingly surprised this morning to find that they were to be taken by the throat and required to proceed with the defence. He did not think, after the facihties which the counsel on this side had afforded to gentlemen on the other side to go on with their cases, that the understanding with which the cases com- menced should be violated, even if the agreement of Saturday should be brokjn up. In consequence of this understanding, Mr. Laflamme, one of liis confreres, had loft town, and he did not think it right or fair, that it should thus be set aside by the counsel for the prosecution. Mr. Ritchie, on the part of the prosecution, would say, that he liad been present several days and heard no word of such agree- ment. It was certainly not known between the gentlemen repre- senting the United States, and the gentlemen for the defence. If there was any such agreement it must be between the gentlemen representing the Canadian Government and those for the defence. Mr. Devlin had been in the case since the beginning and con- sidered he represented the United States generally as Mr. Ritchie did. He (]\Ir. D.) could therefore state that he was utterly op- posed to any attempts made to obtain delay. The prosecution now declared the case of the St. Albans bank closed ; but they did not wish to press the gentlemen on the opposite side as to time. The prosecution wished those gentlemen to name the day on Avhich they would go on with the defence. As to the understanding of Saturday night, if the defence had been led astray, and if on that account, any of their witnesses were absent, they would be entitled to reasonable delay in order to get the witnesses back. Mr. Johnson, Q. C, said that nothing would give him greater pleasure than that there should be an understanding, so that delay would be avoided, and the case facilitated. But the idea of the Crown of England making an agreement with criminals, was a thing totally unheard of. He could not enter into any agreement with the prisoners for delay ; and the reason was that such an agree- ment would not bo binding on the prisoners. Hon. Mr. Abbott, Q. C. — What has been stated by my learned friend, Mr. Kerr, is i)erfectl3^ correct. When the examination of witnesses conunenced, there was an understanding to the eflfect that the examinations in all the charges should be taken before we entered upon the defence. That was the understanding on all hands ; and my learned friends on the other side had at that time no other course in contemplation. It was suggested to your Honor — or rather your Honor originated Ihe idea — that it was better that the portion of the evidence of each witness applicable to any particular charge, should be taken by itself, apart from that havhig reference to other charges. For instance, if Mr. 103 ig )C- Sowles could testify as to the facts in the case of the First National bank, that evidence should go into one deposition, while any evi- dence he could give in the case of the St. Albans bank should go into another. I think this was an arrangement well calculated to prevent confusion, and, so far, it has done so. And to show that this arrangement was comprehended by my learned friends opposite, they proceeded promiscuously with the examinations of witnesses in the cases of both the St. Albans banks ; some of those witnesses giving evidence applicable to both charges, the deposi- tions being, however, kept separate. There has been a great deal of good effected in thus keeping the evidence in each charge so well defined and distinct. There is no question here of an agreement between the Crown and criminals, for the Crown has nothing to do with the case what- ever, and the prisoners are not criminals under our laws — even if they are guilty as charged. The question was merely one of re- gularity of procedure, which it is your Honor's province to decide upon ; and all parties, with your Honor's sanction, having pro- ceeded Avith these cases in a well-defined and convenient mode, it is submitted that that mode should not now be departed from. And there is no reason for departing from it, but the contrary. The accused are charged with seven offences ; but can they be seven times extradited ? The object of these charges is to get the accused across the frontier ; and if one of them is proved, that one would warrant their extradition, while proof of them all would do no more. To all these charges we have only one defence to make ; and, in fact, the evidence thus far taken shows that all the offences charged are acts committed in an enterprise — of which each act is only an incident. I don't understand whether this prosecution is carried on by the Crown or the United States Govermuent ; but whichever of these two authorities it is, if the proposition of the prosecution be adopted to try each case separately, and if they fail to make out the present charge, of course evidence will have to be taken on the next charge, and we will also have to bring up our evidence, and to go over the same ground again, and so on till all the charges are disposed of — or until one is established. At such a rate of proceeding, these men will be kept in gaol for six months, whether innocent or not, which is probably the intention. The distinction between this and ordinary criminal investigations is an obvious one. If these men were under charges of seven crimes committed in Canada, they would be liable to seven punish- ments if they were found guilty. That would be a good reason for trying them separately ; but there is no good reason for doing so when a commitment upon them all would entail no greater punish- ment as far as this tribunal is concerned, than if they were com- ^M,.fcl '( : ' i iV, /ir ';■»■ - j'^'';-"' \ < ri :-i: , *: ■•.'.• 104 mitted upon one. All confusion may be avoided by taking the charges together, and then we Avill submit our defence, which rests on one ground only. We have made no unnecessary cross-exami- nation ; we have thrown no obstacles in the way ; and we now desire the case to proceed. Let the whole of the charges bo brought up, and then it will be found we are ready with our de- fence. Hon. Mr. Rose, Q.C., contended that the defence" should now be called upon ; and by this course being adopted, the case would not only be facilitated, but the interests of justice subserved. If the prisoners are committed on this charge, no further enquiry is necessary. If they are discharged on the merits of it, it would be useless to proceed on any other. Mr. Abbott. — Then if they are discharged on this charge, will you abandon the others ? 3Ir. Devlin. — We will answer that when the time comes. II m m y-'3 '■.1 At the opening of the Court at two o'clock. Judge Coursol said : Now that the voluntary examinations have been closed, I desire to state that I in no way recognize this pro- ceeding as regular or legal, and do not wish that it should be con- sidered as a precedent for the other cases. The voluntary examina- tions were taken because Mr. Johnson, as representing the Crown, in this case requested it ; but I entertain serious doubts as to the necessity of it, and would, therefore, wish it to be understood that I give no legal opinion as to whether the voluntary examination of the accused, under the provisions of the Statute to give effect to the Extradition Treaty, is a proper proceeding or not. Then, coming to the point submitted to me before the recess, I have arrived at the conclusion that it is better to allow the accused a reasonable .^elay for their defence : but, before according that delay, I mus| be satisfied that a sufficient reason exists for, it, and I therefore call upon the counsel for the defence to state whether they have any preliminary objections to urge as to the proceedings in the St. Albans bank case, as the nature of their objections if there are any may very much affect my course of procedure in granting the delay asked for on the part of the defence. The disposal of these preliminary objections seems to me necessary, with the view to save time, and to dispose of those matters as speedily as possible. Those objections may be of such a nature as to dispense with the necessity of any defence whatever, and upon this point I must bo satisfied before I grant a delay for a defence upon the merits. It is neces- sary, in the interests of the public service, for the peace and tran- quillity of the country, that these cases should be proceeded with as speedily as possible, having, of course, due regard to the interests 105 of the accused, and I will do all in my power to sec that no un- necessary delay shall arise. At the same time, I shall expect the prosecution, whether a delay be granted or not, to proceed witli the other cases, or declare they withdraw them ; if the counsel foi- the defence had any preli: ^inary objections to the proceedings in the St. Albans bank case I am prepared to hear them. Mr. Abbott said that such a question took them very much by surprise, and that he had not yet scrutinised the proceedings for the purpose of ascertaining whether a preliminary objection was available ; but that he would be prepared to answer the (question if a little time were given. Judge Coursol said that the delay to be given to the prisoners for preparing their defence would depend greatly upon the nature of the preliminary objections made. Mr. Abbott said that surely the fact that the prisoners considered the proceedings informal, and objected to them, could not possibly affect the opinion of the Judge as to the length of time that should reasonably be allowed them for their defence. Judge Coursol said that it might very materially affect that question. Mr. Kerr said that the counsel for the prisoners would 9ffer no preliminary objection which they did not feel their duty to their clients compelled them to do ; and he trusted that the performance of that duty would not expose their clients to have the time short- ened, which would otherwise be considered a reasonable time. Judge Coursol said he should decide, after hearing the objection. what delay would be reasonable. Mr. Devlin desired to know what the objections Avere ? Mr. Abbott said that at this moment he could not say whether any objection would be made or not. Mr. Hose said he thought the objections should be previously sig- nified to the parties in writing. Mr. Jol !ison said he had supervised the proceedings on the part of the Crown, and that he was prepared to sustain them without any previous notice. Judge Coursol said that to require previous notice was very unusual. % F ■ " 1 ■ ( i». ■ - ■ »• .1: 'fV i. 1 f i its Tuesday, Nov. 15. At the opening of the Court this morning, Mr. Kerr rose and said he had observed in the warrant that certain property or effects stated to be stolen, were alleged to be stolen from the bank of St. Albans. This allegation was an impor- tant one, and one without which it would have been impossible to arrest the prisoners. But in this warrant, issued under the provi- ■'■ill !!]■.,■ ■ fi|<, 'I, 11 lOtJ J! T 'iJ ■ ' m lf;t ' ."iions of the Treaty, and the statute to give effect to the Treaty, tlie same particularity was required as in an indictment. The war- rant should show the offence committed by the prisoners, in order that they should be legally apprehended. It was necessary to show who was the person robbed, and whose were the effects. The learned gentleman having cited authority, went on to say, the Avarrant disclosed the special fact that the money belonged to the bank of St. Albans. Noav the (jucstion to be decided was — had any evidence been brought forward to show that there was such an institution in existence in the State of Vermont as the bank just named ? He affirmed there was no such evidence. What had been shown was, that an act or incorporation had been given to the •• President, Directors and Company " of a certain bank. There was nothing to substantiate the fact that the bank of St. Albans was the institution meant in the incorporation of a certain " Presi- dent, Directors, and Company." It was hardly necessary to cite authorities to prove that no corporate body could be named in an indictment, except in the proper terms ; in fact this point was setth 1 two years ago, at a term of the Court of Queen's Bench held in this city, and in a case in which he and his learned friend Mr. Devlin were engaged. It was only by its corporate name that the existence of any institution could be recognized. In this case the corporate name had not been given ; therefore the Court did not know there was any such institution as the bank of St. Albans. Mr. Devlin replied that if this argument had been applied to a bill of indictment, it might, perhaps, have some weight ; but applied in a preUminary investigation of this nature, it could have no effect. There was a vast difference between a simple investigation of charges and a bill of indictment. The prisoners were not before the Court on a bill of indictment. Judge Coursol said that the remarks of Mr. Kerr might hold good if the prisoners were before the Court on an indictment for an offence. But they were not in that position, and this was simply a preliminary examination. If errors had been made, they had been rectified by the evidence, and the Court could still further rectify any errors in the final committment, if such a commitment had to be made out. Hon. Mr. Abbott made application for a delay of thirty days to enable the prisoners to obtain the evidence necessary for the defence ; and in support of the application, read the following affi- davit made by Young, Collins, and Wallace, on behalf of themselves and of the.r fellow prisoners. [;ii PROVINCE OF CANADA, District of Montreal, LOWER CANADA, TO WIT. 107 rOLICE COURT. Bennet II. Youn^, Thomas Bronsdou Collins, and Caleb McDowall "Wallace, being themselves prisoners, and on behalf of their fellow prisoners in this matter, being severally duly sworn, do depose and say : That deponents and the other prisoners charged Avith the offence noAv under investigation rcciuirc certain testimony ■which is necessary and material to their defence, and which they are unable to procure in Montreal, or even in Canada. That they desire to prove and can prove, if time be allowed them to procure the requisite evidence, that every one of the prisoners now in custody is an officer or soldier of the army of the Confederate States of America, duly enlisted, enrolled or commissioned res[)ectively, and their term of service has not expired. That they also desire to prove and can prove, if time be allowed them for that purpose, that this deponent, Bennet II. Young, is, and was on the nineteenth day of October last, an officer of the army of the Confederate States of America, holding the commi£!='ion and rank of first lieu- tenant in that army, and that they, the rest of these deponents, and of the prisoners, were duly engaged and placed under his command for special service, under the authority to him given by the government of the said Confederate States, through the Secre- tary for the War Department thereof. That they also desire to prove and can prove, if time be allowed them for that pur- pose, that every act and thing Avhich they or any of them did on the 19th of October last, at St. Albans, in the State of Vermont, Avas so done under and hi pursuance of the orders of the said Lieutenant Y'oung, given by him by virtue of his instructions from the said government and of his authority in the premises. That all and every of the said acts Averc duly authorized and directed by the mihtary authorities of the said Confederate States acting under the Government thereof, and were acts of Avarfare committed and performed in conformity Avith the rules and prece- dents by Avhich civilized Avarfare is conducted ; and that they Averc more than justified by the acts of generals and armies in the ser- vice and under the orders of the Federal Government of the United States, and as retaliation for such acts. That the said acts of these deponents and of the other prisoners have, as depo- nents are informed and believe, been approved of by the said Government of the said Confederate States, as behig done in con- formity Avith instructions so received from the said Government. That deponents and the other prisoners have appUed to the Hon. Mr. Edmonds noAv here representing the United States Govern- iQent for a safe conduct for a messenger to proceed to Richmond Mi:. '':'t. ' ^ I;; !}.^^ i;|-> ■•% ■■ y'M m J.' ■ m 1 * »;■ ; 108 in the said Confederate States for the documentary and otlier cvi- dence re(iuired to establish the .foregoing facts, but that the said appUcation has not been granted. That if such safe conduct were granted, the said evidence couM 1)9 obtained in eight or ten days, bnt as the same has been refused, a period of at least thirty days will bo re(inired to enal)le these deponents and the other prisoners to obtain such evidence by other means, an(l that a less period of time than the said period of thirty days will be insufficient to enable them to obtain the same. And deponents further say that if they are not accorded the said delay to enable them to procure the evidence necessary for their defence, such evi- dence as they will be enabled to offer will be necessarily less perfect than if a just and humane indulgence were accorded to them, sucli as they now declare to bo necessary ; and that if by reason of the want of the requisite time to obtain such evidence, their defence should be imperfectly established, and they should thereupon be delivered to the emissaries of the Federal Government, such a pro- ceeding will be handing them over to certain death at the hands of the executioner, on the pretence that they have committed crimes which they never either committed or contemplated, and which they look upon with abhorrence ; but in reality because they are th3 enemies of the Northern Government, engaged in warfare against them, and because that government desires to wreak vengeance upon them, which is neither justifiable by the laws of war nor any civilized country ; and that such a death would be a judicial mur- der, the guilt of which would lie upon those by whom deponents would be deprived of the power of adducing evidence in their defence ; and deponents have signed. (Signed) BENNETT H. YOUNG, T. B. COLLINS, C. M. WALLACE. Sworn before me, at Montreal, this 15ih day of November, 1864. (Signed) CnAS. J. Coursol, J.S.P. Mr. Abbott submitted to his Honor that the prisoners should be allowed the thirty days they prayed for. Mr. Johnson, Q. 0., on the part of the Crown, took this affidavit to mean thafc the prisoners desired thirty days' delay to procure evidence. He could not conceal from himself that this was the first time any such question arose since the passing of the Treaty. It was quite true that in England and here, in the case of crime committed within our own jurisdiction, a magistrate might receive exculpatory evidence, and return it with the other evidence. But did this course apply to crimes under the treaty, committed ia .'■« 4 ». ■. 101> be foreign jurisdictiDn ? Not at all. What would be tlie effeet of the Court granting this application ? Why, it would 1)C to oust the courts of the United iStates of their jurisdiction. If thirty days were granted, then these gentlemen might, at the end of that time, ai-:k for a hundred days, — the one request would be as reasonable as the other. lie was not prei>ared to say these gentlemen had jiower, hi the face of the United States authorities, to penetrate to Ivichmond, and obtain documents, under thirty days ; but at all events, the demand was one which his learned friends had no right to make. To grant such demand would be to deprive the United States courts of their jurisdiction. Mr. Kerr said he was happy to see that the Crown, or rather the counsel for the Crown, had at last got rid of the haze which, since the commencement of these proceedings, had enveloped the position occui)ied by him, and had now come out in his true colors, when he said on the part of the Crown of Great Britain that he protested against thirty days being allowed the prisoners to com- municate with the capital of the country to which they professed to belong. The Government of Great Britain or that of Canada had no right whatever to interfere in this case ; and the conduct of the Crown here in the management of this prosecution had been marked from beginning to end by an exhibition of the most dis- graceful despotism on the part of its ministers and of those who attended to its interests in this Provhice, in support of which alle- gation he referred to the experience of the learned Judge of Sessions himself. He maintained that the Government of Cana- da, — he would not say that the Government of Great Britain was responsible, as it knew nothing of the proceedings adopted in this case, — in the course it had taken in the present en(|uiry, had shown an ignorance of constitutional hnv which Avould draw upon it the reprobation of the law officers of Great Britain when the circum- stances of this case came to the ears of the people of that country. lie believed it would never be said in Great Britain, that that country wliich had boasted of being an asylum of political refu- gees from time immemorial — which had received and protected the refugees from France at and since the time of the First Revolution — which had even shielded 'its present Emperor from the hands of his enemies — would authorise her officers to appear in any case of extradition in order to deliver up men whose only offisnce was their being political refugees, to use their own words " thrown by the fortunes of war on her soil." The Crown here had forgotteii its duty in employing its officers to pro- secute this case, for it was patent that from the first they had appeared against the prisoners conjointly with the counsel for the United States. In ordinary cases the course was that, after the u-V." "*-'■(■ U-i ■"tl:' l.h. . ,1 ■■Hi 'M ^ m^^M m V.^t 110 1 41*'. ,. '>' *■ « magistrate or justice had completed the en(|uiry and made his report, the law officers of the Crow were called upon for their opinion thereon. But we had evidence throughout of a prejudging of this case, having had suhordinates of the Crown coming here to conduct the prosecution ; and without any knowledge of the facts of the case, the intention of the government, Ave believe, has been to extradite the prisoners if by any means it possibly could be effected. The objections against the solicited delay would have come with some grace from the counsel for the United States, but for the counsel for the Crown to have opposed it, to have virtually contended that it was not proper or desirable to have all the fact , ..-■ i r>w> I il t ■ f ■k\ ) r i ! ;: i ■i^^ I 'S l{ 112 counsel for the Crown showed that they were afraid to oucountcr the evidence tlie defence would bring forward of the character in wliich the prisoners fi;^ured in their raid on St. Albans. As Mr. LaHamme had something to remark on this point, he would say no more at present. Mr. Laflamme said that the proposition on the part of the Crown officers was that the granting of the delay asked for would de- jirive the tribunals of the United IStates of the exercise of their jurisdiction upon the offence alleged against the prisoners. Assur- edly a proposition of this description was rather a strange one to come from the Crown officers, as it would amount to an indica- tion of a sort of conspiracy entered into between them and the Federal authorities, for the j)urposc of kidnapping the prisoners from British territory, where they were entitled to their freedom, and to surrender them to their enemies who were awaiting their rendition, not to do justice to, but to wreak vengeance upon them. This -would be the result of the proceedings, if the prisoners were denied the right of exculpating themselves. It had been said also that -when ])risoners had exculpatory evidence at hand, they might be allowed the privilege of bringing it up ; but when they had not such ready, they should not be allowed the privilege of adducing it. Upon what authority could such a principle rest ? lie had several times heard very strange law, but this was the strangest he ever listened to. The exceptional character of the prisoners, and the exceptional position in which they stood, far from limiting the pri- vileges ordinarily allowed the accused, should rather operate to their greater liberty and advantage ; because were it not for the treaty which gave His Honor jurisdiction in such matters, even suppose the prisoners had committed crimes in the States, they could not have been made amenable in Canada. The acts which they committed out of the limits of this jurisdiction were no crimes cognizable by His Honor or any Courts of this Province, and con- sequently every benefit of law extended to the accused must bo accorded the present prisoners, who could not be considered as cri- minals in the eyes of the committing magistrate. They were only detained for the execution of the international treaty between Canada and the United States, and could not be detained or regarded as criminals till such evidence of criminality be adduced as would justify His Honor in committing for extradition. The prisoners had committed no offence according to our law, and more than the ordinary benefits of that law should be accorded them. Assuredly, in a case of this description, it would be sufficient to refer to the Statute, independent of the general principle of law, to 'establish that evidence according to the rules of our own law was required to show that an offence had been committed. There might be crimin- !'■• 110 ality on their part, hut tht-y must neccssiirily ho allowed every opportunity to .show there was no criminality. If a party was accused oC m'lrder and came hefore the Court and showed the man said to he nmrd'M'ed was alive or killed l)y accident, assuredly there could lie no enmimili^y eluir^eahle, and it" a man aceust'd ot' theft couM ])rove tlii' property ,suj)posed to he stolen helon;j;erovince, in sending the party to jail for trial. Therefore, if evidence must he hrou;^ht touchin;^ the truth of the charge, the accused mi^ht ])roduoe testimony in answer to prove it groundless, and they could not he deprived of this ri;^ht. In addition to these reasons in favor of the })Otition, it had heen an invariahle practice of His Honor to allow the accused to hrin;;^ 11}) cxculj)atory evidence, audit Avould ho impossilde to deviate in this case from that course. The Crown had also asserted that the evidence which could he allowed was such as -would amount to a denomination of the act itself. It was impossihle for the prose- cution to show that a denial of the crime could not he made as well hy adduciu!^ evidence that destroyed the essence of criminality as if the defence denied the fact itself. The main question and the con- dition of the exercise of the ma.glstrate's jurisdiction in this matter was the existence of a crime against the municipal laws of the United States such as defined by the treaty. If they estahlished that tliis was an act committed Ijy the order of a government, ])y one of two *l)clligorents, recognized as such hy Britain, bo it a case of plunder or a mere case of devastation, involving the loss of life, there was no case of murder or robbery. Be this a most extraordinary deviation from the ordinary rules of common Avarfare, be it inhuman, and against the princii)los even of civilized warfiire, independent of any othoi' question than its being an act committed by regular, com- missioned troops, under a special order from a belligerent Power, in such a case there was no more room for an application of the treaty, than in the case of an appeal for the extradition of any of the South- ern gentlemen in this colony on a charge of annoying the Govern- ment of the United States. If a party could show that a hostile act was committed according to instructions by a regularly commis- sioned soldier of a belligerent government, he proved it was not an act of murder or robbery, but a political act for which there might II i 5, 4 ■ A' '(?;■'"■:; 1 4f 1 -f .-' . ,.> ■' t;;,2J .f- m te 1- * 114 be a remedy, but not under tbe present treaty law. Evidence might be produced in behalf of the prisoners every whit as beneficial as proof hi a case of murder that tlio supposed murdered man was alive. He could see no difference between exculpatory testimony of one kind or other. If tlie prisoners were entitled to show any evidence Avhatever in exculpation, time must be allowed them ; because if time were not allowed, it would be as Avell to deny them justice absolutely, and deliver them up to the American authorities who were here, assisted by all the powers in this country, exer- cising a most unjust and unlaAvful influence not only upon public opinion, but upon every officer in the public service, to make them act not as judges, but as police officers, in order to obtain by every possible means the surrender of the accused to the United States authorities. If the Crown Avishcd to disclaim any unjust action on its part in this prosecution, and show it was actuated by fair motives and wished to see the treaty well carried out, they ought to give full scope to the defence, and not begrudge a delay of thirty days for the procuring of exculpatory testimony. The Crown had resorted to various methods in the conducting of the case, such as bringing forward only one charge at a time, in order to experiment, to feel their way, to increase the chances of rendition on some of them, with the object of securing that result. ]3ut there were two parties equally entitled to justice in this case — one the Confederate and the other the Federal States. The former had come forward claim- ing the exercise of that British impartiality and the benefit of that British liberty Avhich Britai)i never denied the refugee once he entered British territory. And when these prisoners had reached the shelter of the British flag, and were prepared to show that they had committed nought but an act of justifialdc warfare, it was strange to see the Government act as it had done, trying all in its power to curtail the efforts of the defence to establish the innoconqp of the accused. lie (Mr. L.) was sure His Honor, considering the risk and difficulty expei-ienced in reaching the Confederate capital, would not refuse such a reasonable demand as thirty daj^s' delay, which would enable the defence to show beyond a doubt that the acts charged against the prisoners in reality were neither robbery nor murder, but acts of common and justifiable warfare. Mr. Devlin desired to say that the gentlemen employed as counsel for the United States concurred in the opposition made by Mr. Johnson to the application for delay. The prisoners were arrested on the 19th of October ; but had they shown that from that time up till now they had adopted any means to secure the attendance of witnesses ? Hon. Mr. Edmonds, who specially represented the U. S. government, had declared that his govern- ment had desired every reasonable means of defence should be I I ^m 115 allowed the pvisonevs befove final judgment was rendered. But if thirty days more were allowed, it would he simply a denial of justice. lion. Mr. Ahboft. — In our affidavit this morning it was not neces- sary to give the details of what we had been doing to procure evidence. We are not called upon to state such facts, and by so doing ])ut the gentlemen on the other side, and the Federal govern- ment on our track. My learned friend jNIr. Devlin, treats this case as if it were one of petty larceny committed within the juris- diction of the justice, and appears to think that as .' should be bound, by the rules that govern such cases. This, on the contrary, is a matter of unusual importance, involving grave questions of inter- national law, of national honor and duty, and affecting also the lives of fourteen men. If these questions arc to receive the con- sideration they deserve, the facts must be fully ascertained, and tlic nature of the case renders it evident that full information upon them can only be obtained in Richmond. And as by the route which must be followed, we arc at a distance of 1,500 or 1, GOO miles from Richmond, and to reach it have to pass through hostile territory, guarded at every point, how can we hope to obtain evi- dence in less than thirty days ? We could get it in ten days, if a safe conduct had been granted to a messenger. Juchje Courml. — This is a very important matter, and requires some consideration. I sliall give a decision at two o'clock. After recess, Jud 4 i: '■•■ ■ \ I ■ W I- lie I : :^ i:ri \i-m fectly satisfied of the criminality of the actof the accused according to our own hiw. The affidavit shows that the accused propose to prove that anything they may have done was an act of legitimate warfare, and as international law is a part of the common law of this country, affecting the character of homicide and other felonies when com- mitted under special circumstances, I cannot he prepared to give any o])inion upon the evidence of criminality until I have the whole case before me. The evidence proposed to be add>iced may not affect the case laid before me by the prosecution, Init I feel that I should be guilty of an act of injustice if I deprived the accused of the opportunity of placing their evidence before me, reserving to myself finally to determine tlie objection now made to the hearing of evi- dence, when the case is finally closed and left to my decision. Having thus disposed of this point, the next consideration is what delay shall be granted. The application is for one month, and the ques- tion in my mind is whether such a delay bo a reasonable one or not. I have arrived at the conclusion that, under the s})ecial circum- stances disclosed in the affidavit, to grant merely a week or a fort- night would be tantamount to refusing the application, and I will therefore grant until the loth of December next, upon the express condition tliat, if the prosecution so desire it, the further proceed- ings upon the other charges shall be suspended until the evidence for the defence and the argument in this case shall be fully con- cluded, and also, in that event, the prisoners must place before me a written application that they be remanded upon all the charges until the said 13th day of December next. Mr. Devlin then said he would state without hesitat'on that the prosecution would not proceed with any of the other charges until this case was finally decided, the arguments concluded, and His Honor's decision given on its merits. Judge Coursol. — The prosecution may do as it thinks proper until the arguments and the witnesses shall be heard. Mr. Devlin. — You grant this delay, making it a condition that this case is to be finally concluded, a,nd the opinion of the Court expressed before we arc called upon to proceed on any further charge. I state that we will not do so. Judge Coursol. — The evidence in the other cases will not be gone into, until the defence and arguments in this are fully concluded. 3Ir. Devlin. — We will avail ourselves of that part of your Honor's judgment, and will not proceed till the ease is fully determined. 3Ir. Kerr. — Is the decision of the Court to be pronounced in this case previous to going on with any others ? Judge Coursol. — I am not prepared to say so. My judgment is that the evidence in other cases shall not be gone into, till the defence and arguments in this case shall be fully closed. ! 117 f.'' Mr. Kerr. — Very well, your Honor. Judge Coursol. — Something has been said about pressure, but I can say that neither favor nor affection has ever been allowed to interfere Avith justice since I have had a seat on this Bench, and I am sure my fellow-citizens will be prepared to give me that endor- sation. Mr. Kerr. — AVe are perfectly convinced of that, your Honor. Judge Coursol. — 1 shall require, in writing, from your clients, Mr. Kerr, that they will not apply for any release until the l'3th of December. Mr. Devlin. — I am requested 1)y my friends from the United States to say that they concur in the judgment given by your Honor. They desire me to say that they concur fully in the post- ponement of the matter for a month, provided the other cases are not ifone on with till this one is finished. l*f f 11,:. gone HI Tuesday, Dec. 13. The en([uiry into the facts of this raid, adjourned, nearly a a month ago, till to-day, in order to attbrd time ibr the production of evidence for the defence, from Richmond, "was resumed this morninji; before Judi^e Coursol. Messrs. Abbott and LafiamiDC, Q.C., and Mr. Kerr, appeared for the defence, Mr. Johnson for the Crown, and Mr. liitchie and Mr. Devlin for the U. S. Government. The accused occupied the petit jury box. Mr. Kerr. — I Avish to bring under your Honor's notice a (|ues- tion affecting your jurisdiction in this case. Tlie Judiie of the ^Sessions. — As Judy the fifth section it was, however, jn-ovided that, " if ))y any law or ordinance " thereafter made l)y the local Legislature of any British Colony " or possession abroad, provision shall 1)0 made for carryin,!^ into complete effect, within such colony or possession, the ohjects of the said Act, by the substitution of some other enactment in lieu thereof; then ller Majesty mi,i^ht, with the advice of her Privy Council, (if to llcr iMajesty in Council it seems meet, l)ut not otherwise,) suspend within any such colony or })Ossession the operation of the said Act of the Imperial Parliament, so long as such substituted enactment continues in force there, and no •' lon^^er." The 12th A'ic, c. 10, Avas passed by the Parliament of Canada as such substituted enactment, and was reserved for Her Majesty's assent ; that assent was _given, and on the 28th March, 1850, ller Majesty in Council, by order, suspended the Imperial Act so long as the 12th Vic, c. 10, should be in force, and no longer. The Court. — "Was the 12th Victoria sanctioned ? Mr. Kerr. — It was a reserved Act. The Order in Council was proclaimed l)y the Governor General in the Canada Gazette, page 820.3, May 1850. Thereupon the Imperial Aci was suspended in Canada during the continuance in force of the 12th Vict., chap. 10. By " the Act respecting the Consolidated Statutes of Canada," (22nd Vic, chap. 20, C. S. C, page xxxvi), the 5th section, it is provided that from the day mentioned in the proclamation provided for by s. 4, all the enactments in the several acts, and parts of acts in such amended schedule A, mentioned as repealed, shall stand and l)e repealed ; by the 0th section it is enacted that if the provisions of the Consolidated Statutes arc not the same as those of the repealed acts quoad transactions after those statutes came into cfiFect, the provisions of the Consolidated Statutes shall prevail. In schedule A (C.S.C., page 1203), appcp.^s as repealed, 12 Vic, chap. 10. Upon the proclamation by the Governor General, of the Consolidated Statutes, there appeared as chap. 80 of the 22nd Vic, " An Act respecting the treaty, between Her Majesty and the United States of America, for the apprehension and surrender of certain offenders." By the 24th Vic, chap. G, the first, second, and third sections of the 80th chap., C. S. C, above referred to, were repealed absolutely, and for the said sections were submitted three other sections. By the first section substituted, jurisdiction was taken away from the justices of the peace throughout the Province, and to certain functionaries alone was given the power to take a complaint and issue a warrant. V :\ ■ "i,. >.%■ ■ ¥l ■ .■ !'"*5'' ■ ("■! )vf; :■■■;! ■*''■..■ ' '/..'sfU'-i' ■■■h\- .'•v.ii-'i".; .: ii- 1: i [■m 120 K :*■ ' y Under the 12tli Vic, chap. 19, and c. 80 of tlie Consolidated Statutes of Canada, the evidence in the opinion of the jvidge or justice of the peace should he sufficient to sustain the charge ; under the 24t]i Vic, chap. G, it is only necessary to be such as would justify his apprehension and committal for trial. Here then are grave changes from the provisions of the 12th Vic, chap. ID. We have, moreover, the absolute repeal of that statute by the Act 22 Vic, chap. 20 ; it is true that it was substantially re-enacted by the 80th chap, of the Con. Stat, of Canada, but from the very moment of its repeal the Imi)erial Statute revived and remained in force in this country until a new order of the Queen in Council had been published, suspending its operations during the continuance in force of the 8!ith chap, of the Con. Stat, of Canada. But to make assurance dou])ly sure, the 24th Vic, chap 0, al)Solutely repealed all the three first clauses of the 80th cliap. C. S. C, and substituted in their ])laces three clauses which had never been sul)niitted to the consideration of Her Majesty in Council, clauses, moreover, Avhich cannot be looked upon as givhig complete eft'ect to the treaty, as thereby some of the officers expressly named in the treaty as those to whom power to act thereunder should be given, have l)een ousted of their jurisdiction. It must be taken for granted that the Order in Council having the effect of putting life into any Act of Parlia- ment passed by our legislature, must l)e posterior in date thereto ; in fact, it is nothing more than recpiiring that previous to the coming into force of the su1)stitutcd Act, Her Majesty's assent thereto should only be given by such Order in Council. The ])0wer to repeal any act of our Legislature belongs to our Legis- lature ; no restriction is by Imperial Act imposed on the repeal of the sul\stituted enactment, and no other body, save our Legis- lature, in the natural course of things, could repeal its Acts ; conserpiently the repeal of the three clauses of chap. 80, of the Consolidated Statutes of Canada is valid ; but the clauses sought to be sul)stituted have, as yet, no life in them, — they are but inanimate bodies, awaiting the lircath of life from the order of Her Majesty in ller Privy Council. The state of the law then is, that in heu of our Provincial Statutes, or any of them, being in force, the Imperial Act, temporarily suspended quoad this Province by the Order in Council of the 28th March, 1850. since the repeal of the 12th Vic, chap. 10 (whether by the Conso'idated Statutes, or by the 24th Vic, chap. G, is indifferent), regulates all proceedings for extradition, and previous to any of the officers therein named issuing a warrant or arresting a person charged with the com- mission of one of the crimes (mentioned in tb ' ^••oaty), in the United States, it was absolutely essential, in order to give your Honor jurisdiction in the matter, that a w^arrant should be issued Ic' 121 from the Governor General, according to tlie provisions of tlie Imperial Act. No such warrant, however, has been issued ; and you have not, nor had you at any time, jurisdiction in these cases to arrest the prisoners. The Court. — Your argument is, in effect, that, according to the Imperial Act, it would he necessary to the arrest of the accused that a warrant of apprehension signed by the Governor General should be issued ; that owing to the circumstances mentioned, the Imperial Act has revived and is now in force, and that under it I Avould have no jurisdiction in this case ? Mr. Kerr. — No jurisdiction, no warrant having issued. Mr. Devlin thought that a reyily to such arguments, on the part of the counsel on the other side, was unnecessary, lie would merely remind His Honor that he acted at present under the law of the land — acted under the powers conferred upon him by chap. ('», 24th Vic. Was the Ashburton Treaty in force — yes, or no 'i One might assume from the argument just heard tliat we had been living in blissful ignorance of our rights and of the law of the land in this matter till the present moment. The learned counsel just sat down called upon the Court to trample upon the law of the land, and ignore the authority conferred upon him by the Provin- cial Legislature. Had the Court the power or jurisdiction to set aside a solemn act of Parliament, while sitting in his present capa- city ? Such power was not vested in him ; and if the Legislature had failed to pass a law that would give force and effect to the Imperial Treaty, they were the party to make due amends. The Act passed in 1801 gave His Honor full power to dispose of sucli cases, and this Act was assented to by Her Majesty, and had not since been repealed or disallowed. ^Vith regard to the argument that the Court was without jurisdiction because no warrant had been issued signed by the Governor General, he (Mr. D.) Avould remark that fugitives from justice liad frcrpiently been arrested here without a warrant in the first instance, except one from the local judge or magistrate charged with the execution of the provisions of the Treaty ; for this reason : if the authorities of the United States were obHged to wait till all those formalities were complied with, a murderer or robber whose extradition was demanded could effect his escape from this Province before any steps could be taken to secure his arrest : and, say the Judges of the United States, " the Treaty would in this way be rendered nugatory." But even if there was no law for such arrests, it was not in the Court's power, while in his present position, to set aside a solemn act of the Legis- lature of Canada. The Court. — It would be very well for the public convenience, but it would not be lav: to arrest parties on either side the lines without h warrant. I cannot accept that argument as law. i! it i«! ■ ((■• t I s ;-K|-*-".^ it!;'";- ir ■I i 'A Tl I t ;il 100 Jfr. Devlin did not mean to say tliat parties should be arrested in tlii.s I'rovincc ^vithout some authority ; but he meant that it was in His Honor's power to issue his warrant for the apprehension of a fugitive before waitin;^ for other authority, or a warrant from the Governor. The opposite pretension woukl cause a frustration of justice, and render it impossible to carry out the provisions of the Treaty. J/y. Johnson said Mr. Kerr was in error in statin;^ that 12 Vic, cha}). 10, had been repealed. No such thing. He had cited from the schedule annexed to the Act to show it had been repealed. But repealed for what — for the ])urj)0.se of consolidation with the other statutes. It is now reproduced in the Consolidated Statutes, and exists with the exception of three clauses. The (3th and 7th Victoria (Imperial Statute) was suspended by proclamation of Iler Majesty, and the 12th Vic. cap. 19 introduced as the law which ought to guide the mode of procedure under the Ashburton Treaty. But this Act never Avas repealed, being reproduced in the Consoli- dated Statutes. The Consolidated Statutes,^ chap. 20, page xxxviii set forth that it should not be held to oi)erate as new law, but should have effect as consolidated and as declaratory of the law contained in the Acts so repealed, and for which they were substi- tuted. His Honor, therefore, had jurisdiction to proceed without a warrant from any governor or any executive authority under the Consolidated Statutes now existing. 3L\ Kerr said they did not recpiire the judge to set aside any Act. As long as the proclamation of Her Majesty, giving effect to the amended Act, was withheld, it remained in our statute book inanimate. It wanted breath and life to be infused into it by the order in Council. He contended that by the 24th Vic, chap. 6, the 12th Vic, chap. 10, had been absolutely repealed, and it could not be pretended that the substitution by our Legislature of three clauses other than those assented to by Her Majesty did not alter the 12th Vic, chap. 10, and destroy its force. The Court said it was a knotty point, and must be taken into consideration. Mr. Devlin. — You can go on with the examination of the wit- nesses in the meantime. The Court. — Not when the (question is as to jurisdiction. The Court noAy adjourned mitil two o'clock. THE RAIDERS DISCHARGED. k At three o'clock the Judge of the Sessions came into Court and proceeded as follows to give his decision upon the objections to his jurisdiction raised in the forenoon : — 123 Tlic point I am now called upon to (Iccldo is one of very great importance, inasnuieh as my jurisdiction and my authority to act in this case has ))oen i)ut in (piestion, and is now for the first time directly denied. It is CDutended on belialf of the prison that the Treaty being a national act, the imperial enacment nui^-t he reganled as the Supreme Law, and our colonial Legislatures as siiltordinate to it. And that the effect of Her Majesty's Royal rro^lamation sus])en- ding the im))erial enactment to give effect to our 12th Vic, so long as such suhstitututed provisions of that act remained in force, and no longer, necessarily revived the provisions of tliLi Imperial Act, the moment our local Legislature repealed the substituted enact- ment and provisi(jns of our Provincial Legislature. It is also contended that the new ])rovisions enacted by the 24th Vic, changed materially those of the 12th Vic, ajjproved by Her Majesty, with the advice of her Privy Council, and that the same ap])roval was again necessary to give effect to these new ])rovisions, and that the arrest of the parties charged, could only have been made upon a warrant signed by the (Governor (Jeneral or person administering the government of Canada in the terms of the Impe- rial Act, On the other side, on the part of the defence, it is argued that the 24th Vic, has been sanctioned l)y the Cirovernor General, and Laving been disallowed ))y Her Majesty within two years Avhich period had passed long before the arrest of tlio accused, that it has power of law. Also, that I have no })Ower to declare the 24th Vic, unconstitutional or void. This argument would be conclusive if the Act related to a local matter, within the ordinary jurisdiction of our Legislature, and interpreting the clauses (juoted of the Union Act as I do now, I hold that this provision as to the disallowance of a measure passed by our Legislature, can only have reference to such measures as our own legislature can originate. In this case it is different, the subject matter is a national one, it has a reference to a treaty between Great Britain and a foreign nation, and the imperial act must be regarded as the law which governs the case. That our legislation is subordinate to it in this instance, and in the absence of any sanction, or formal approval given by the Queen to the 24tli Vic, in the special form reqmred by the Imperial Act, such as was given to the 12th Vic. I am of opinion that by repealing the clauses of that Act conferring juris- diction, the imperial enactments revived. I am not called here upon to declare the 24th Vic. unconstitutional or void, but simply state what law is in force, and I feel that I am bound to obey the imperial authority in a matter of national concern, and Avithout which .the treaty would never have been put in operation. I: t t ■r 4.1 I L •:l' .•■f !, !■'■"■■ ■i'l '.JM i f f* 1-24 n After ;:;iviii;i; to tlicso difirront oltjcctions my most deliberate attontitm, 1 have come to the t'ollowin;^ coiiclusidii : — 1. That the rinpcrial Act passed to t!;ive cIVect to the treaty is to he r(/:>rded as tlie supreme iiower and authority, and to he taken as my sole ;i;uide in this ease, and that the ('((Hin/nni etKidiHent could tidcH(h't)i/ [\\o imperial enactments, and <:;ivin,i: force and effect to oiu- local legislation. 2. That the 12th Vic. ])assed hy our le;^islaturc with the view to substitute ])rovisions to those contained in the Inijierial Act, did not become the law of this Province without the Koyal sanction first bein;.^ ^iven to it, in the form of a special approval by Iler Majesty, with the advice of ]Ier Privy Council ; and in the terms of the Imperial Act, the suspension was not abscdute, but limited to such a time a« the 12th \\c. should remain in force, and no Jonfjtr. 8. That the substitutcMl jirovisions of the 12th Vic. having been repealed by the 24th A'ic. cap. 1!*, the provisions of the Imperial Act are reviHcd^ which provisions to confer jurisdiction re(iuire the issuing of a warrant in the/z'/'.sY phtcc, by tlie (Jovev.ior (leneral, or the person administering the govennnent of Canada. • 4. That while admitting, as contended by the learned and able gentlemen representing the prosecution, that uidess the Union had had in all matters relating to local governmoit, the sanction of the (Governor General onl)ehalf of Her Mnjesty the (^ueen, is suffi- cient to make a law operative, still the subject matter in this case being a treaty between two nations re(['>iring im))erial legislation to give it effect the case is so exceptional \a its character that I am compelled to look to the proposed Act to decide what is the force of our local legislature in tliat respect. Giving, therefore, to the 5tli section of the Imperial Act a broad and leg;U interpretation, I cannot arrive at any other conclusion than that any substituted enactment to that Act of our Legislature must not only be ajiproved by Iler Majesty of ller Privy Council, but also that an order of suspension must expressly be made to give it effect. That the new provision contained in the 24th Vic, changed very materially the provisions of the 12th Vic, approved by Her Majesty by Royal Proclamations, issued with the advice of Iler ^lajesty's Privy Council, by removing from all of Iler iNIajesty's Justices of the peace jurisdiction in these matters, Avhich, by the terms of the treaty itself, is conferred upon them, giving such powers to the Judges of our Superior Courts and to the local officers not designated in the l2th Vic, and thus, in my humble opinion, the new provisions of the 24tli Vic. arc sub- ; ! lli.") ^i fuliduil mca- xpres- Council to ;jriv M;i jostv , So jcct to the f(»l!, is entitled an Act to amen* ■' '.y t ■ ■>^ 't . ' w ' 1 , , . (. . ,h' ■■■.'. :j^^..^:^ ^; ••'•'■ i- 4; : ' "i^/ ' •^v .;i hlr ''' ••n' ■-Ti" '>f > ^ '^i ■ ■ * > . f'> 1 , ■ ■■;^t' .. : :tf '■'\y '1 •/' ;,. '> , ■'■■I'.h '>'"•', '■ i-, ^''fp M'- 'sli; -: ■ ,■: W I:'' } tv'l - 1 , 1 if. . !■.- hr M u !;■"<■*'■ L. ■ |.i - t l-2il tip' f .■ '■ i«l 5. .« of the j)rl,-ar tlie counsrl loi- the riiite(l States on a matter <>f such ;:;reat iiiiportanee. ^Ve desire to briii;^ under your notice this important fact, that oidy one aj)jtlieation has been made to you, and that the counsel who addressed you this niornin;^ appeared only in the case of the St. Albans bank, \vhieli has been the suliject of investi^^ation hitherto. Vou are aware it Avas determined that only one case could bo ]iroceede(l with at a time, and therefore the application addressed to you Avas for the dischar;j;e of the prisoners in this jiarticular case. You owe it to the ^^entlcmcn sent here to support what they conceive to be the Just claims of the United States Government in this matter, and to justice also, to aft'ord theui a reasonal)le opportunity of put tin li; before this Court the claims of their clients. When only one a])plication has been made, should it be said that a Jud^e in a Itritish Court, where fair play was peculiarly to be expected, should have disposed of six cases on an application with re;i;ard to one <->uly, without the counsel for the Unitetl States bein«^ allowed to interpose a sin_!:;le objection, or offer a single remark. AVhat ■would be said of a ]>ritish Jud<^e in such circumstances!' The counsel for the defence know perfectly well that such a case would be utterly mn)rccedented. They know that, having had the benefit of your ruling, the Courts were open to them to ol)tain for their clients that relief which they had a right to expect. Eat let them come forward with their ai»))lications. Have you not issued six warrants against the accused ? You have only one warrant before you now, and only one charge. Therefore, I call on you to hesitate before discharging them from six other accusations which wc have not had a single opj)ortunity of addressing the Court on. Would vou order the discharge of a criminal accused on six indictments, because ac(iuitted on one, Avithout trial on the others 't You would never sanction such a thing, and this is Avliat you would be doing in this case. As a judge, you arc not supposed to know that the proceedings in the other cases arc not strictly correct. If you carry out this order, it Avill be sard our Judges prejudged cases, because, Avhile being addressed on one they disposed of others. The character of the judiciary for fair play is at stake ; and though there arc in this city men Avho sympathize with the enemies of the U.S., I liave yet to learn there is one who is not a lover of fair play and British justice to all parties. I Avill state my conviction that if the clients we represent here are made to feel that Avhcn they enter a British Court of Justice their claim Avill not uc heard, Ave must be prepared to submit to the conse- quences. No country in the Avorld has shown more real fairness 127 and iiistico to En^'land in matters of extradition tlian tin* United States. Tlic aiitliorities show that A\lien Kn;^hinil has denianth'il the extradition of a fn;i;itivo from justice, the lii^j^liest and the lowest judf^es, and all the authorities have comhined to ^^ive eft'eet to this most henefieial law ; and no man can say the United States Government or aiithorities ever threw an o1)staele in the way of an extradition rightfully demanded. 1 sincerely hope you uill not then dismiss the other cases with which wo arc now |)re])ared to proceed. If you deny ns this legitimate oj^portunity of repre- senting our claims, it will he said that advanta;^e has heen taken of this prosecution, and of the co\msel pn this side. I a^^ain hojie you will sanction no act which would ho as re])u;:;nant to justice, as msidtin;^ to our clients. You Avill recollect that the other jud;:;es have a right to adjudicate in this matter, having c<.neurrent juris- diction. The Court. — I have decided I have no jurisdiction in this case after a careful consideration. 3Ir. 'fohnson said it appeared to him Mr. Devlin mistmderstood the decision, evidently thinking the Court discharged the accused in every case, as to murder, ro])I)ery, i!cc. TJie Court. — I discharge them in every case before me. 3Ir. Ldftanune Avanted to know if counsel luid a right to argue upon a judgment amd discuss its merits. The Court could not more clearly explain the grounds of the jud: nent. The prisoners "were discharged from all the accusations, did were free, and any remarks made by counsel might be made for their benefit after the Court was over. 3Ir. Johnson was not prepared to say one ^vord against the judgment, having merely risen to remark that he represented the Crown, -svhich had an interest in this case also, but of a very different description from that of his learned frien■' 130 ^Si'- , ''■ fi': % '•'■ ■ 4 • 'I 'ii) .1 1'' of the value of three liundred dollars current money aforesaid, of the moneys and property of the said Samuel Breck, and another his co-partner in trade, to Avit, one Jonathan Wcathertrce, from the person and against the will of the said Samuel ]]reck, then and there feloniously and violently did steal, take and carry away, against the form of the Statutes of the said State of Averment, and against the peace and dignity of the said State. The deponent, CyruK Newton Bishop, being duly sworn, depos- cth and saith : — On the nineteenth day of October last, I Avas ful- filling the duties of teller of a certain banking institution known avS the St. Albans bank, in the town of St. Albans aforesaid, between the hours of three and four o'clock of that day, in the afternoon. Two men, strangers to me, entered the bank. They came up to the front of the counter. I stepped along to the counter. They immediately presented each of them a revolver to my breast. I was about three feet from them at this time. I recognize one of these men now in Court. His name is Marcus Spurr. I imme- diately Avent into the Directors' room, which is adjoining. I suc- ceeded in closing the door nearly, and they rushed against it and forced it open. The door struck mo in the forehead and bruised me. Immediately one of them named Collins seized me by the shoulder, and presenting a revolver at the same time to my b.ead, and the said Marcus Spurr also presented a revolver at my head, and they said to mo, that if I gave any alarm or made any resistance they would blow my brains out. At this time three other parries came into the bank, who Avcrc then and still are stran""ers to me. The said Collins then asked me where we kept our ""old and silver. I told him we had no gold. He then asked me if we had any silver. I told him we had. He asked me where it was. I told him it was in a safe, and pointed it out to him. Then he, the said Collins, administered to me, and to one Martin A. Seymour, a clerk in the bank, some sort of an oath, to the effect that we would not give any alarm, or fire on the Confederate soldiers. Then they proceeded to pack up the money, and they then ordered me to open the safe in the Directors' room. I opened it and they innnediately pulled out two or three bags of silver, about fourteen hundred dollars' worth. One remarked to the other " We cannot carry so much." Thereupon they broke open the ba"s and filled their pockets. They took all they could carry. They took also all the bills of the bank and the bills of other banks in our safe, and a lot of money of the United States, commonly known as "-reenbacks. During the time they Avere in the bank they locked the door of the bank, and some person came to the door and knocked for admittance. They opened the door, and the pcri son came in, and this jjcrson was one Samuel Breck, of St. IGl ■;i'" 1' of or, he |)cn Ink Ihc Albai aforesaid, mcrcliaiit. After adinittin;^ ]Mr. Dreek they immet I lately hjcked tlie door agahi. One of thein j)ut a revolver to his head, and demanded his snrrender as tlieir prisoner. They took hold of liim and forced him ai^ainst the counter, and demanded his money, ■which he had in his hand. lie beii;an to dehate tlie (juestion with them, and said that it was private property. I spoke to him, and said that he had better give it up to them. I said they had robbed id they had ";ot lau roooeii us, ana as tiiey iiaci got us, we were obliged to give up the money. They forced him into the Directors' room. I learnt that the amount they took from him was about four hundred dollars American ciu-rency. These parties also threatened the said Breck that if he gave any alarm they would shoot him. There was another rap at the door by some one wishing to gain admission. They opened the door, and the })erson came in, wlio was a clerk in the store of Jose|)h S. Weeks, and they seized him by the shoul- der and forced him into the Directors' room, and ordered him to remain there with the rest of us, and we were all kept in that room. About this time I heard some firing in the streets. I stood opposite the Avindow and saw into the street, and I then saw per- sons on horseback riding to and fro. They were firing revolvers at the citizens of St. Albans. Immediately afterwards three of these parties left the bank, leaving two in the bank as guards over us. These also left in a few minutes. During all these proceed- ings these five persons were acting in concert. I allude, of course, to the five persons who came into the bank and committed the robbery as aforesaid, of which five persons the said Marcus Spurr, one of the prisoners now in attendance, was one. CrjHS-examlned on behalf of the Confederate States. — I have been examined before on a charge against these same men. I de- tailed the facts respecting these matters on that occasion, and I related on that occasion the circumstances that took place at St. Albans on the nineteenth of October last. When the prisoner Spurr, and Collins presented pistols at ray head, I asked them what the programme was, and Avhat this meant ; and they said they were Confederate soldiers, detailed from Early's army to come north to rob and plunder, as Gen. Sheridan was doing in the Shenandoah valley. The reason why I omitted this fact, in my examination-in- chief, was because I supposed they wanted only the prominent points, and this was not asked of me. Being asked whether I omitted it intentionally or not, I say that I had no intention one "way or the other. I stated that fact when I was examined before, in my examination-in-chief. I don't know whether the prisoners consider this fact of importance or not. The money that Breck had was in his hands when it was taken from him. The first firing I saw was from the front window of the Directors' room. The .-) y :# ■til ■r?:!r ''■YV-l I' 132 -t! k ■AT 1. II:- -'I •4 r. ^■ » 'ft ■'II ■f street in which tlie firing was, runs nearly north and south. There appeared to be confusion among the party riding about, some riding in one direction and some in another. I next saw them after the five liad left the bank and after I came out on the steps. They were more in order at that time — Avere collected together, and were riding north. I could not tell whether they were under the coni^and of anybody or not at that time. They were at the northern end of the bank. There were a good many people in the streets then, more than usual. After I came out on the steps I saw some shots fired, but not many. I heard reports, but I saw no shots fired. I say, on reflection, that I saw some shots fired after I came out, I cannot tell who fired these shots. I think I know pretty Avell what goes on in St. Albans of any interest. Being asked whether or no one or more of the party Avas Avoundcd at St. Albans on that nccasion, I say I hoard such reports, and a^ain heard them contradicted. I do not knoAV Avhether it is knoAvn or not Avho fired on the ])arty. I do not knoAV Avhether any citizen fired on the party, and I do not know that I am bound to say Avhat I belieA'e. I saAv a large bunch of money in Mr. Brock's hand, and he told me there Avas about four hundred dollars, and I believed him. Being asked Avhy I state my belief in reference to Mr. Brock's money and refuse to state my belief in reference to the firing on the party, I say I saAv Mr. lireck's money and lieard his statement on the spot ; and the other, I did not see the party fired on, but I heard tliat they Avcre, and also I h^rd that report con- tradicted. I know Mr. Fuller of St. Albans. I have had conver- sation Avitli said Mr. Fuller. He made statements to me a])out Avhat Avas going on generally. He never told me anything par- ticularly about the firing. I heard him make statements generally, but not more to me than to any one else. I heard him say that he had sna[t})ed at them, and inferred that he meant he had snapped a percussion cap at them. I did not knoAV anything about Avhethcr there Avas any powder or ball near Avhen he SMnpped the percussion caps. I think perhajts he av;is tiying to fire at them, and that his gun or pistol missed fire. Being asked if I have any doubt as to this being his intention, I say that I did not see the transaction. I do not know Avhore Fuller Avas at that time. I know that a citizen Avas shot that day. I understand that he Avas shot in the Main street at St, Albans. I heard it rei)orted that he Avas shot near the ])lace Avhere Fuller Avas trying to fire upon the party. This citizen fell to the north of the bank ; Avas shot then, about fifteen or twenty rods from it. I f)e1icve ho Avas shot by one of the party. Tlie jilace Avhere he fell Avas between the bank and the place Avhere I saw the party all rifling off in a body. I believe — I know per.^onally — that there were other banks robbed at St. Albans it- I : 111 'g i-allv, 133 OH that day besides the St. Albans bank. There was tlie Franklin County bank and First National l)ank. I know it, because after- wards I went into the banks and was told all the facts, and was showed that they had no money — that they had l)oen robbeil, the same as we had been. I did not notice that any buildin;^s had been set fire to ; I understood the American Hotel and a store of Mr. Atwood had been attempted to be set on lire. I do not recol- lect of any other. I am aware that some ten or a dozen of the citizens were taken prisoners and kept umler ^nard on the Green at St. Albans on that occasion. I should jud^'c that fjr some time the party was pretty much in possession of the town. I and Mr. Seymour were in the Directors' room when Mr. ]Jreck came in ; I was then standing by the door of the l)ii'ectors' Prcvi(Kis to his comiiw in. room, when Mr, ]3reck came in. the party had possessed themsL-lves of tlie money of tlu' bank, and were packiu^i^ uj) a part of it when ho entered. 1 s\vear that there w(n-e five of tlie i)avty iu the bank wlieu ^Ir. ]>reck came in. 1 swear that Marcus Spm-r was in the ])ank when Brock's money was taken from him. I do not know what country- man ]>reck is. I think he is a citizen of A'^ermont, )»ecause he has resided there lou^i;' enough to become one. lie keejts a store at St. Albans. I am aware that there was a civil war ra;j;iu;i; iu the United States on the nineti.'enth of Uctobei- last, and still is ra^in,^' tliere. The Xorthern peoi)le call tliemselves tlie United States, and the Southern people call themselves llcl)els ; I have heard them called the Confederate States of America, that is the name they under- take to assume. A'^ermont is one of the States forming the Northern section, calling themselves the Northern States. This war has been raging four or five years ; during tliat time the Confederate States have had a President, Senate, and Congress, The States which claim to be part of the Confederate States, ai'C A'irginia, North and South Carolina, ( leorgia, Floi'ida,— Alabama did, but I do not know that slie does now, — and a portion of Tennessee. The State of A^crniont has contril)uted money an-.M''^;' .f;!;|y#.i '■i'HU 't-^ i< 13(3 And furtlior deponent saith not ; and liatli si;^ncd, the fore;^oin,2; deposition having been taken and read over in the presence of the prisoners. (Signed) CYRUS NEWTON BISIIor. Sworn l)eforc mc this twenty- seventh (hiv ot'Deceni])cr, one thousand eight hundred and sixty-four. (Signed) J. Smith, J.S.C. 4 I.I.I % |. i.- ;.f '1* Joseph F. Betfersu'orth, of the State of Kentucky, one of the United States of America, now of tlie city of Montreal, in the District of ^Montreal, soklier, upon his oath saitli : — I liavc been in Cana prisoners, I say that I know them all : I meaiv the prisoners calling them- selves 13ennett IL Yoimg. Charles Moore Swager, Marcus Spurr, William II. Hutchinson, and Sipiire Turner Tcavis, and now befoic this Court. 1 ha\e known two of them since last August, that is Y'oung and Spurr ; and the others I have formed an acquaintance with in Gaol here, i have been told that the l)anks of St. Albans aforesaid, wore robbed ; I cannot say that I know when. Since I have been in Court, I overheard that a person named Samuel IJreck was robbed, that is since ' came here in Court. I heard from several persons that the banks were robbed, I heard this from ]Mr. I). I>ishop, and some others ; I never heard the prisimers say thatauy man was rob])ed, nor that the baidvS hail been robbed; they do not admit that it was robbery. The prisoners admitted tome that they had been in St. Albans, and that they had been in the said banks, and that tliey liad taken the money from the l)auk:i, — they said the sum they had so taken from the said banks exceeded two hundred thousand dollars. I wish to a;ld that they did not look upon this as robbery. They never told me liow many were en^a^ed in this matter. The conversation which took place between the prisoners and myself, and which 1 have herein before stated, occurred since my arrest, Avhicli was last Monday week. The prisoners also stated in my presence, that they liad taken some hm-ses from St. Albans, lieing asked what they said about the money, they said it was an act of war done in retaliation for the depredations conuuitted in the Shenandoah vrdley by our enemies. 1 heard them mention the name of the St. Albans b udc and other banks in connection with this matter, and the taking of the money, I believe L heard them say that the raid was made by them in Ucto1)er last, I cannot say the precise day. I was not in St. Albans in the month of October last. ,.' i 10 )< Question. — Do you wish tlio Court to luvlerstatid tliiit tlie five prisoners now present and recoj^nizcd by you, tidmittod in your presence that they acted to;::;etlier, and that they aiiUMl and assisted each other and in concert with each other, in the taking; of the money from the hanks of St. All)ans and in the otlier acts com- mitted duriu^j; the continuance of tlie raid? Answer. — I never heard anythinti; of the kind, and (h) not know wliether they acted in concert or not. Jiut tliey a(hnitted to mo tliat they were at St. Alhans on that occasion to;;vther. They also aihnitted to me that they went there to,^other for the ])m'pose of tukiu;^ tlie money and burning the town. 1 also heard the pri- soners say, that one man was wounded on that occasion. 1 heard one or two of the prisoners say tliat they had revolvers. 1 do not recollect which said it. I also heard the prisoners say that iiinne- diatelv after the raid, thev lied to ( 'anada. Thev told mc that they came from the Confederate ann\^ ; and [ know from circumstances mentioned to me hy one of them that he di him at Toronto. I do not ■i-v ' I/'-'; , ■■■')■' '*" i:;8 recollect liavin;]; in(;t Collins and Youiilt to;i;etlier. I have not met any of the |»risoner.s, except the two I have mentioned, or any of the others said to be concerned in the raid. , *'5 CroHH-e.i uin'uted on hehalf of the Confederate States. — I am a Confederate soldier ; I have servcMl in scvei'al States ; I helonose of releasin-^ the Confederate prisoners at (>am[) Douglass ; there was an organization ;j!;oin;:; on there for this object at that time. I was told by some of my friends, whom 1 know to be Confederate soldiers, and also by Younu; and Spurr, that they, Y'oun^i^ and S[)urr, were in the Confederate army. I was informed dnrin,^ the time I was in Chica;j;o that a raid or raids was beini; ori^anized there for the purpose of plundering:; and burning the Northern towns on the frontier. I am aware that Young and S])urr were then engaged in organizing such raid or raids, that is Y'oung and Sjjurr were in that organization. 1 am aware that large ((uantities of arms and materials of war were stored in Chicago during the month of August last. There is no regular uniform in the Confetlerate service ; if there is, they do not all wear uniforms. It is a fact that in many cases they, the Confederate troops, have gone into battle in United States uniform. In the Course of my exp''"ience, I have witnesssed the destruction of pri- vate property by Cnitcd States troops. I have been plundered by them myself, being at the time a soldier. I saw a private house burning at Iluntsville, Alabama, in 18t31, soon after the battle of Shilo. I was under arrest at the time ; after my release I was informed bv the citizens and soldiers of the United States ai'ir.y that it !iad been done by General Mitchell's orders. I cannot say that I can state positively that I saw any other instances of destruc- tion of private i)roperty, l)ut I have heard of a great many which I know to be true. I saw Collins in Chicago at tlie same time I saw Young and Sj)urr. In the course of the conversations I liad with the prisoners in Gaol, upon every occasion they told me, that the raid on St. Albans was made with the express orders of the Con- federate Governm'^nt, and further I say not and have signed, the foregoing deposition having been taken and read in the presence of the prisoners. (Signed) JOSEPH F. BETTERSWORTIL Sworn before me, at [Montreal, this twenty-eighth day of December, 18G4. (Signed) J. SMITH, J.S.C. 130 Samuel Brcck, of the town of St. Albania, in tlio Stato of Vomiout, one of the United States of America, andnow in tlie city of Montreal, merchant, upon his oath, saith : I liavo resided in St. Alhans over (V year, and am a merchant there, doin;; business with one Jona- than Weatherhee, as co-partners unch'r tlie firm and name of Brock (fe \Veatlierl)ce, and we were so on tlie nineteenth day of October last. U[ion the said nineteentli day of October, between the hours of three and four of the clock, I proceeded to the St. Albans bank, in the town of St, Albans aforesaid, for the ))nrpose of paying a note that fell duo in the ])ank on that day, by our firm : the amount of the note was five hundred dollars. 1 had with me three hundred and ninety-three dollars in current money of the United States, and an account due by tlie Tresident, to conijileto the j)ayment of the difference. AVlien 1 arrived at the bank door, I found it closed. 1 knocked at the door and it was immediately opened by a person who was a stranger to nie. 1 went into the bank, and the door was closed immedi;.tely by the same ])erson who had opened it, and who had in his hand a revolver, and with the other hand he cauuht me by the shoulder, and ])ushed me along to the desk, and made the remark that the man of the bank was in the other room. As I api)roached the desk, I was met by another stranger, who had also a revolver in his hand. The money for the payment of the note I carried in my left hand, and upon this latter stranger seeing it, he said I will take that money. Before he took it, Mr. Bishop, a witness examined in this matter, and who was hi an adjoining room, said, " Brock, wo are caught ; you had better give it up," remarking at the same time, that they had robbed the l)aiik of all the money it contained. One of the party thereupon said that they had done so. 1 only noticed two armed strangers in the bank, the one wlio opened the door for me, and the one who met r.,o at the desk as aforesaid. After these remarks, I gave to one of the armed men the money I had with me, amount- ing to three hundred and ninety-three dollars. I gave up this money because I Avas put in fear of my life if I refused to do so. The man who stood at the desk, and who took the money from me, before taking it, presented a revolver at me, which almost touched my person. I do not recollect that he said he would blow my brains out ; I believed he would from his appearance, and from the remark Mr. Bishop made, and from the revolver being presented at me. This man, after he said he would take my money, said that I was under arrest, and tkat they were (Jonfederatc soldiers. I then asked them if they did not respect private property ; they said they did not, and asked me if Generals Sherman and Sheridan respected private property. This money which Avas so taken from me belonged to myself and my co-partner. These armed men Avere ii ■f: ."1 I: i '•.■> ¥W.\ 140 • 1 i ■ , ■ ! ,1 diTHscd ill civilians' clothes. I did not toll tlicni that the money I held in my hand was |)nvatc ])roi)erty, nor did I tell them that it was nut ])nvatc property. After takmj; this money from mo, one of the armed men still ke[)t his hand on my shoulder, and aided mo into the Director's room, that is, ho shoved me hi. This armed man said that if I attempted to escape, or j^ivc any alarm, ho woiild shoot me. This was the man that took my money from mo, his words Avero that he woidd hlow my l)rain3 out; in conseipicncc of this threat, I remained i(uiet. I was kept in this state for about t(Mi minutes. While I was there, another knock came at the door. The door was opened. A y<>un;i; clerk, or telegraph operator of ^Tr. Weeks' canie in. Jle haank, that is, south of it. Previous to t!ie departiu'o from the bank of the said aruied men, one of them soon after went out, and the other remarked that if we were seen outside the bank, we should be shot, lie then Avent out. Mr lil^liop then went out, and 1 soon after followed, and tlieu saw a party of horsemen ridhig north. The prisoner, who gives his name as S({uire Tiu'uer Teavis, I rccogni/e as one of the two anuod men who took my money in the way 1 have already stated, in the St. Albans bank, at the town of St. Albans aforesaid, upon the nineteenth day of October last past. i'foaH-c.vdhiuicd on behalf of the Confederate States. — I know tliat there is a paper called the New York Herald, published in the city of New York. I believe it is one of the "papers in which Government orders and proclamations arc pu))lisbe(l in the city of New York. General l)ix is in command of the department of the East, in which the State of Vermont is. I have scon a proclama- tion published in the said paper previous to this date, and 1 presume that the proclamation in the number of the New York Herald of the fifteenth instant, is a copy of the proclamation in question. It appears in the first page of the said pa})er, and is stated the general order, number ninety-seven. I do not know that there is an official paper in the United States. It is the practice there to publish proclamations and orders in the leading papers. Being asked \f- he 141 v/hothor it was not owin;j; partially to what Mr. liisliop said to inc in tlic hank that you gave up the money to the raidei.s that asked for it, I say that what Mr. l>ishop siiie- ! cemher, 1(S04. ) (Signed), J. Smith, J.S.C. Gcoi'i/e Edwin FalrcJiIld, of the town of St. Alhans, in the State of V'M'mont, one of the United States of America, clerk, and now in the city of ^Montreal, u])on his oath saitli. — I was living in the town of St. Alhans aforesaid on the said nineteenth (hiy of ()cto]>er last past. On tliat day I went out on to the street in St. Alhans, hetween three and four in the afternoon, and saw a jarty of armed men on horseback in the street. I was some ten or fifteen rods above the St. Albans bank, which is on Main street, of the said town ; directly after I went out, one of tliese armed men went up to a gentleman I was conversing with, named Xettleton, and demanded from him his hat, saying, that he wished to get it for one of his comrades. Mr. Nettleton hesitated a moment, and then remarked, that he could not lose his hat ; he then made a second demand lor it, saying at the same time that he Avould shoot him through if he refused, and the same time this man on horseback drew two revol- vers, and cocked them, and pointed them at said Nettleton ; said Nettleton put his hand under his overcoat as if with the intention of draAving fire-arms ; at this, the man on horseback Avished to know if he had any arms ab(Hit him, and to show h'.m die inside of his coat, immediately threatening again to shoot him. At this time the man that Avas in Avant of the hat, rode up and said to his com- rade not to parley, Init to shoot the damned cuss. At this time there Avas a cry for help doAvn the street, in the vicinity of the banks ; these tAvo men Avheelcd their horses about, and rode off' in U. » . f :■: :4I. . , r k i I'; .i 1^ ■i ;fi8r ■' i. i 1 ^ 142 i} the direction of the cry for lielp. At the time the second man rode up as ahove stated, I remarked to jNIr. Nettleton not to stand such an insult. At this tlie man that first rode up, pointed two re- volvers at me, and wished to know if I had any arms about me, and to show the inside of my coat, or he would shoot me through. I remarked that I hoped he would not shoot an unprotected citizen, opening my coat to convince him that I was unarmed. After these men had ridden down the street in the direction of the cry for help, most of the party rode back up the street nearly opposite to Avhere I was standing, and an order was given from some one of the party to fall in line, which they did as well as they could, and headed down the street, in which direction Captain Conger was coming with a few others. I saw Captain Conger with a gun, which he Avas apparently trying to fire at them, but the gun did not go off. These that had formed in lino and headed down the street, all fired two or three shots each at said Captain Conger and his comrades. About this time there appeared to be one of tiie ro])bers who was not mounted ; he called upon the Captain, as I supposed, to furnish him with a horse. Upon this the man called upon rode up in front of Fuller's livery staldes, and demanded Mr. Fuller's saddler to lead down a horse that had just been rode into town by a Mr. Smith, and was then standing in front of the livery stables. The man hesitated at first ; and the man who rode up, and demanded the liorso. told him that if he did not comply he would shoot him. Upon this the saddler led the horse down. This man had a revolver in his hand -which was cocked, and which he presented at the saddler. The armed man rode by the side of the said saddler, keeping the revolver pointed at him most of the time until he came nearly opposite to where I was standing, and where the man in want of a horse was standing ; this man mounted the horse and rode off with the party. At this time there was an order given by some one of the armed party to throw Greek fire upon a building opposite where I was standing ; by this time the horses became unmanage- able from fright probably, and the armed party fired several shots at citizens in different directions. Some of the shots striking very near where I was standing, one struck the corner of the store about six feet from where I stood, and I saw the ball which was i>icked up by a gentleman standing near ; they then rode out of town irregularly, and that is the last I saw of them. This armed party appeared to be acting in concert from the time I first saw them until they rode off ; they were all dressed in citizens' clothes, and I saw nothing about them to indicate that they were soldiers. The prisoners, Bennett II. Young, and Charles INIoore Swager, I recognize as being two of the armed party that I have referred to. All that I have related took place on Main street, in the town of St. Albans aforesaid, and in the immediate vicinity of the banks. r ■ 143 Cross-era mini'il on behalf of the ConfiMUM-ato States. — I did not sec Greek fire tlirown, ])ut I lieard the order ;];iven to do so on Mr. Brainheard's store. There were otlier buiUlin^s set fire to that day, — the American hotel, and Victor Atwood's hardware store. When Captain Conifer came up with the gun, tlierc wore four or five people with him, and by that time the citizens were beginning to collect in the street. There arc aliout three thousand inhabitants in St. Albans. At that time the armed party had been in the town about half an hour. V>y this time a great number of the in- habitants had collected, but 1 cannot say that the greater portion, as precautions were taken to prevent this, by the armed party. At that time they had several of the principal citizens prisoners on the green. Up to this time they had pretty much the control of the village, and did much what they had a mind to. I do not know that anv one was shot bv the volleys I saw fired. I know that there was a soldier of the United States army in St. Albans that day ; he was in uniform, lie was not taken prisoner by the armed party : and further I say not, and have signed, the foregoing depo- sition having been taken and read in the presence of the prisoners. (Signed) Sworn to before me, at Montreal, this twenty-eighth day of De- cember, 1864. (Signed) GEO. E. FAIJICIIILD. J. Smith, J.S.C. Edward A. Sowles, of the town of St. Albans, in the State of Vermont, one of the United States of America, attorney and coun- sel-at-law, now in the city of Montreal, upon his oath saith : — I am an attorney and counsel-at-law, practicing as such in Vermont aforesaid, and have practiced as such since the year eighteen hun- dred and fifty-eight. I have been present and have heard all the evidence in this case. Question. — From the facts deposed to in your presence and hearing in this case by Cyrus Newton Bishop, Samuel Brcck, Joseph T. Bettersworth, and George E. Fairchild, what criminal offence, in your opinion, was committed, according to the laws of the said State of A'^ermont in force on the said nineteenth day of October last, as therein disclosed by the said witnesses ? (Objected to by Mr. Kerr. Objection maintained.) Question. — Was robbery a crime by the laws of the said State of Vermont in force on the said nineteenth day of October last ? Answer. — It was, and still is. Question. — Did the facts disclosed in the evidence of the wit- nesses above named, as given in this cause in your presence and hearing, amount to and constitute the crime of robbery, as known ':■' hi W i -h'v..' ■ ! •) V.'. :• ■ ' ■. r, ,! . •'•4L- • ii; i ir ' y' } .',, h.^'^m m\ H: 144 It ; ■ > J. , ■ if^ '.' ■\ ■ i>'^:7 i and reco^^nized by tlic laws of the said State of Vermont in force on tlic said nineteenth day of October last ? Ansirer. — They did, and do now. Quextioti. — Accordin■'; ;ij:- .■■,.*. i,. I, '■■* I j-^; "'^'' 1 !■ ■a' i '■^^ •'!: .1 • .-r"' %:. i; r. <■ '■•1 1 V, ^ ' ■, ;• i •* i r'.. '■ f ' :«•! !; ■ ^. ^•'..' l\ , *■'< ! 1 ' 1^ i 1 - ( ; » ,1 1 M hi i 14G ^ns?<'er. — Having given up the money, uiuler the circumstances, not to an agent of the bank, he would be liable to the bank. And further I say not, and have signed, the foregoing depositions hav- ing been taken and read in the presence of the prisoners. (Signed) EDWARD A. SOWLKS. Sworn to before me, at Montreal, this } twenty -ninth day of December, 18(54. ji (Signed) J. Smitif, J.S.C. 31r. Bethune. — This is our last witness. 3Ir. Kerr. — I have a point to submit as to the jurisdiction of the Court. But as I was not aware last evening that the counsel for the prosecution woidd have finished so soon, 1 shall be ready to raorrow morning with my ai-gument as to the jurisdiction. Friday, 30th Dec, 1864. Mr Kerr foi- the prisoners submitted : 1. That the Province of Canada was but a corporation with powers limited and defined by Imp. Act, ord and 4tli Vic, cap. 35, the third clause of which was in the following terms. From and after the re-union of the said two Provinces, there shall be within the Province of Canada one Legislative Council and one Assembly, to be severally constituted and composed in the manner hereinafter prescribed, which shall be called "The Legislative Council and Assembly of Canada;" and within the Province of Canada, Her Majesty shall have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, Avelfare aiid good government of the Provmce of Canada, such laws not being repugnant to this Act, or to such- parts of the said Act, passed in the thirty-first year of the Reign of His said late Majesty, as are not hereby repealed, or to any Act of Parliament made or to be made, and not hereby repealed, which does or shall, by express enactment or by necessary intendment, extend to the Provinces of Upper and Lower Canada, or to either of them, or to the Province of Canada, and that all such laws being passed by the said Legislative Council and Assembly, and assented to by Her Maj'::ty, or assented to in Her Majesty's name by the Governor of the Province of Canada, shall be valid and binding to all intents and purposes within the Province of Canada. 2. The conditions precedent then to the validity of Provincial Statutes, were : first, that they should be for the peace, welfare and good government of the Province ; second, that they should not be repugnant to the provisions of any Imp. Act then in force, or which, thereafter might be passed. 3. By the 10th article of the treaty of 1842, between Great jial md be lick leat 147 Britain and the United States, it -was provided that extradition of criminals in certain cases sliould be made, and the powers contract- ing pledged themselves to vest jurisdiction in their Judges and their Magistrates respectively. 4. The Imp. Act, (ith and 7th Vic, cap. 7ti, was then passed for the purpose of giving effect to the treaty ; and the Judges and other Magistrates in Canada, were thereby invested with the power of issuing warrants to apprehend and immediately upon the issue of the Governor General's warrant giving information that a requi- sition for extradition had been made. 5. Previous to the passing of the 0th and 7th Vic, cap 70, nr> Judge or Magistrate had a right to issue his warrant to apprehend a foreigner for a crime committed in the United States. 6. By the 5th Section of the 6th and 7th Vic, cap. 70, it was provided ; " that if by any law or ordinance thereafter made by the Local Legislature of any British colony or possession abroad, pro- vision shall be made for carrying into complete effect within such colony or possession, the objects of the said Act by the substitution of some other enactment in lieu thereof, then Her Majesty might with the advice of Iler Privy Council (if to Her Majesty in Council it seems meet but not otherwise) suspend within any such colony or possession, the operation of the said act of the Lnp. Par- liament, so long as such substituted enactment continues in force there, and no longer." 7. The 12th Vic, cap. 19, was passed by the Provincial Parlia- ment of Canada, under and by virtue of the permission and power given in the said 5th Section of the 6th and 7th Vic, cap. 76 ; and in the early part of 1850, Her Majesty by order in Council sus- pended the operation of the Imp. Act in Canada, so long as the said 12th Vic, cap. 19, should be in force and no longer. 8. By the 12th Vic, cap. 19, the necessity for the Governor's warrant preceding the issue of a warrant by a judge or magistrate, was done away with, and any one of the Judges or Justices of the Peace throughout the Province, was authorized to issue such war- rant to examine witnesses and upon complaint vmder oath or affir- mation being made, the words and spirit of the treaty being therein carefully preserved. 9. By the 5th clause of the 12th Vic, (the enactment being composed of five clauses only) it was provided that " this Act shall continue in force during the continuance of the tenth article of the said treaty, and no longer." 10. Under and by virtue then of the 5th clause of the 6th and 7th Vic, cap. 76, and the order in Council of Her Majesty, the 12th Vic, cap. 19, became and was the colonial enactment substituted in Canada, for that Imp. Act, and the operation of the Imp. Act ':■'•■'. '"■'.■ t •t .•■,'1 ■I p. -[.nil ".imp ,1 J:v ' »>.T 7'4 'A '!■< ■•■■.*' ; j', "■M '■ -I : ■ - i. y*- ! !;• :^,<-' : ji :■.» w 1 l'« kl'^- 1 p1 148 was suspended in the Province, 3o long as that enactment (the 12th Vic, cap. 19), remained in force and no longer — the fifth clause of the Statute 12th Vic, must also be regarded as a kind of pledge quoad the duration of the act itself. 11. By the Provincial Act, 22nd Vic, cap. 29,. it was pro- vided " that from the day mentioned in the proclamation provided for by section four, all the enactments in the several Acts and parts of Acts in such amended Schedule A mentioned as repealed, shall stand and be repealed ; by the 9th Section, it was provided " that if the provisions of the Consolidated Statutes are not the same as those of the repealed acts quoad transactions after those Consoli- dated Statutes come into eflfect, the provisions of the Consolidated Statute shall prevail." 12. In Schedule A (Con. Stafc. of Canada, p. 1203) appears as repealed 12th Vic, cap. 19. 13. The Governor General issued his proclamation on the 9th Nov., 1859, fixing the 5th of Dec. as the day on which the Conso- lidated Statutes of Canada, should come into force under the 4th Section, 22nd Vic, cap. 29. 14. The 22nd Vic, cap. 89, (Consolidated Statutes of Canada) was a re-enactment of the 12th Vic, cap. 19. 15. By the Provincial Statute, 24th Vic, cap. 6, the first three clauses of the 22nd Vic, cap. 89, were repealed — and three other clauses substituted therefor. By the 24th Vic, jurisdiction in cases of extradition was taken away from the Justices of the Peace throughout the Province, and vested in certain other officials — the words in the first section of the 22nd Vic, cap. 89, " with having committed within the jurisdiction of the United States of America, or of any of such States, any of the crimes, &.C.," were changed to " with having committed within the jurisdiction of the United States of America, any of the crimes, &c.," and other changes were made relating to the sufficiency of the evidence. 16. No order of Her Majesty in Council suspending the opera- tion of the Imp. Act during the continuance in force of the 24th Vic, cap. 6, was ever made. 17. By the repealing clause of the 24th Vic, cap. 6, three of the five clauses composing the 22nd Vic, cap. 89, (the re-enactment of the 12th Vic, cap. 19,) were repealed, leaving in fact but one clause, which was similar to one of the clauses of the Imp. Act, 6th and 7th Vic, cap. 76, so that the enactment substituted (the whole of the Act 12th Vic, cap. 19) had ceased to be in force, and the Imp. Act 6th and 7th Vic, cap. 76, under its own provisions and Her Majesty's order in Council, on the assent by the Governor General to the 24th Vic, cap. 6, revised. Mr. Bethune contended that our legislature had full power to legislate upon this subject irrespective of any treaty or imperial 149 .' fthe nent one 6th hole the and rnor statute bearing on the point. He had referred to the Union Act as demonstrating the power of our legisLature, which he had thought proper to designate a mere corporation. The wording of the act was this : — " That this legislature shall have power to make laws for the peace, welfare and good government of the Province of Canada." This has the largest possible form of expression on the subject. To show this power was inherent in our legislature, he referred to what the legislature of Upper Canada did, before the Union, on this subject, and cited from the Revised Statutes of Upper Canada, p. 692. But, first, the question of extradition had nothing to do with treaties. A treaty Avas a mutual compact between two nations, and, of course, required the interposition of the CroAvn and the Crown alone. In a mere question of extradi- tion the legislature of this province was supreme. In 1833, the legislature of Upper Canada, long before any treaty, legislated upon this subject, and in a broader sense than that of the treaty. The act set forth that, whereas, it was expedient to provide by law for the apprehending and delivering up of felons and malefactors who, having committed crimes in foreign countries have sought, or may, hereafter, seek an asylum in this province it was enacted not only that persons committing such crimes as murder and robbery, arson, &c., might be given up, but those guilty of "larceny or other crimes." Were we to be told this was an unconstitutional act — an act in force ever since 1833 ? It stands on our statutes ratified by the Crown and recognised as law. In Wheaton's Inter- national law, p. 241, it is recorded, that it was stated by the British Minister at the time of the signature of the treaty of 1842, that the Rendition Treaty could have no effect in the British dominions in Europe, till provisions were passed to give it effect ; but that in Canada the treaty could have immediate effect, because in Upper Canada there existed a provision of law touching this very question. The wording of the old Quebec Act giving the legislature of Upper Canada the most ample power to " legislate on every subject affect- the peace, welfare and good government of the Province," mg the legislature passing its statute in accordance with that power. The statute was recognised by Great Britain tlirougli its ambassador negotiating the treaty. The Imperial Act respecting this treaty afforded a confirmation of this view. That Act, in referring to uur power on this subject did not refer to any power as being thereby given us, but to a power already existing at the passing of the said Imperial Act. The wording of that Act took it for granted that such a power really existed with us, and it provided that it should be competent to ller Majesty to suspend the Imperial Act — not that it should be obhgatory upon her to do so. It must be borne in mind that the Crown was under treaty of ol)ligations with an- ■'.i. 150 I 'y .■ ' -i I;?' other nation, and that it was necessary for the Crown, in good faith, to take care that all our obligations were carried out faitlifully. If the legislatiire of this colony did not legislate sufficiently in the matter, the Imperial Parliament could always step in and supply all deficiency so as to answer fully the purposes of the treaty. The Imperial Legislature reserved to itself the right to sec tlie colonial enactment before it would suspend its own enactment. There was nothing illegal or improper in the Provincial and Imperial enact- ments going on together ; on the contrary, they contemplated such a state of things. We passed an act in 184*J, but it did not require any sanction from Iler Majesty in order to make it law. As the act created a machinery of our own, for the sake of convenience, our legislature left it to Her ^lajesty to indicate a day upon wliich this treaty should come in force, in order that if she tiiought pro- per to suspend the operation of the Imperial Statute, there should be no confusion, and that we s]io\ild always, or in tb.e meantime have some law in operation. AVhat was the language of Her Majesty, as appeared by the Canada Gazette / " Vjy virtue of the authority vested in me by the Provincial Act" — the act of 1840 passed by our legislature. This was not surely the authority of a mere Corporation. Her Majesty's power of sus- pension existed as long only as our statute existed. As to the argu- ment that the Imperial Act revived on the repeal of tlie statute of 1849, the clause Mr. Kerr relied on was the 5th of the Act, respecting the Consolidated Statute of Canada, 22nd Vic, chapter 29. The clause provided that on and after such day as that on ■which the Provincial Act should come into force and effect, by direction of the Consolidated Statutes of Canada, etc., all the enactments and parts of enactments mentioned in a certain sche- dule should stand and be repealed, " save only as hereinafter provided." Noav, as to the argument that because the 12th Vic, chapter 19, was embodied in that schedule that it was therefore repealed, and that when the Act 12th Vic, was embodied in the Consolidated Statutes, a new statute was created, it is to be noted, in connection with the words '• save only as hereinafter provided." That the 8th section of the Consolidated Statutes enacted that said Consolidated Statutes should not be held to operate as a new law, " but as a consolidation, and as declaratory of the laws contained in the acts so repealed, and for Avhich the Consolidated Acts were substituted." Her Majesty had no power to do any thing more than deal with the whole Act. She had declared that the Imperial Act would be suspended as long as the Provincial continued in force, and no longer. But was it to be argued that when an act was amended by the legislature it was con- sequently repealed. The Act of 1849 still exists on our Statute Book, as amended, but amended in a very small particular. Upon 151 ihc quCvSti)!! as to tlie jiirisdictiim of our Courts it was amended in only one partieular as to the powers of justiees of tlie peace in the matter. l\\ the statute of I8t)l, we had nion^ly ap])roached nearer to the Imperial Act, restrictin;]; the power <^iveu under that law, by takinii; it away from mere justices of the peace, and ;2;iving it in lieu to juds:;es of sessions, an(l stipendiary ma;:;istrates. There conld ))e no revival of the Imperial Act unless the whole Act of 1849 had been rej»ealed l>y us, which had not taken place, it being still in the Statute Book, and but slightly amended. Her Majesty giving such a sanction, reipiired no special ail ueen ])0wer to fix a day on which our Act should come into force so that there might be no clashing of the two Acts, but in the Statute of 18G1 no requirement of the kind was introduced. Was it to be said that when t'e legislature had ])0wer to enact it had no power to amend or repeal laws ? Our Act of 18*J1 did not require any confirmation at Ilcr Majesty's hands. She had power to reserve it, but did not do so. The only other power she had as regards that act, was to disallow it ; but instead of doing so, Her Majesty treating it as an ordinary act by an order made in Her Privy Council declared that she left it to its o})eration. He denied His Honor had any power to question the constitutionality of the Act, under which he was sit- ting in this case. Tiie law was in the Statute I>ook,and the Judge had no power to say the legislature of Canada had no right to pass a law on this subject. Our legislature had the most complete power and control over this question and required no treaty even in the first instance. It was, then, out of the Court's ])0wcr to set aside an act of Parliament which gave it jurisdiction in this matter. It could not be maintained that even if the Imperial Act had revived, the two could not exist and operate together. Even if the Imperial Statute has revived, enacting that the Governor General might sign a warrant of arrest in such a case as this, was it to be understood that no other official could do anything towards securing the arrest of accused parties in such a matter : Justice Smith delivered the following judgment on Saturday, 7th January, 1805 : The examination of the witnesses in the case of the robbery o^ Brett, having been concluded, Mr. Kerr, on behalf of the prisoner, raised a preliminary objection, on the allegation of the total ab- sence of jurisdiction on the part of the examining Judge, on the ground that the arrest of the prisoner was illegal, the warrant of arrest not having been preceded by a ^-arrant undev the hand and seal of the Govermn* General, signifying that a requisition had been made by the authority of the United States for the delivery of the offender. !*'?■■' f'.i" , :^::n "5. •J 152 " That my warrant having; been issued without such authority, it was altogether illegal, null, and void, and that the prisoner was entitled to his discharge." " The argument was, that there was no law in force in this Province, \uider which such warrant could legally issue, except the Imperial Statute Gth and 7th Victoria, chapter 76 ; and that such law imperatively required the authority of the Governor General, before such arrest could be made, and that without such authority the warrant of arrest was altogether illegal. " In support of this argument, the Counsel for the prisoner stated several pro})ositions. 1st. That tiie arrest and delivenng up of persons accused of crimes, was entirely within the scope of Imperial authority, and beyond the jurisdiction of a Colonial Executive. 2nd. That there was no provision by couunon law, or by the comity of nations, to effect this object. 3rd. That this matter is re;:;ulated entirely by treaty, between independent nations, and that the only treaty which regulated this subject between Great Britain and the United States of America, is the Ashburton Treaty. Let us assume then, for the sake of argument, that the three propositions above stated are true, and that the provisions of the Ashburton Treaty can alone settle and determine the rights of both nations, on tlie subject, — and that the starting point in the settle- ment of the (juestion is that treaty. The Ashburton Treaty was finally settled by the two Govern- ments on the 30th day of October, 1842, by the exchange of Ratifications at London. By the tenth article of this treaty, it was agreed, " That Her Majesty and the said United States should, upon mutual requisitions by them or their ministers, officers, or authorities, respectively made, deliver up to justice all persons, who being charged vith 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 the jurisdiction of either of the liigh contracting parties, should seek an asylum or should be found within the terri- tory of the other." Provided that this should only be done, upon such evidence of criminaUty, as, according to the laws of the place where the fugi- tive, or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed. And that the 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 of the fugitive or person so charged, so that m i >^ 153 he mi^ht be brought before such Judges or (>ther Atagistrates respectively, to the end that the evidence of criniinallty might be heard and considered ; and tnat. if on such hearing the evidence should be deemed sufficient to sustain the charge, it should be the duty of the examining Judge or Magistrate to certify the same, &c., &c., &c. An Act was afterwards passed in the Imperial Parliament to give effect to the treaty in the Gth and 7th years of Her Majesty's reign ; and by one of the clauses of that Act, It was provided, " That before the a"rest of any such offender, a warrant shall issue under the hand tnd seal of the Governor General, or person administering the government, to signify that such an application had been made by tlu' United States for the delivery of such offender, and to require all Justices of the Peace and other Magistrates and officers of justice to govern themselves accordingly. By the fifth section of the said Imperial Act, it is provided, that if by any law or ordonnance, to be thereafter made by the local Legislature of any British colony or possession abroad, provision shall be made for carrying into complete rffect within such colony or possession the objects of the said Act (that is) for giving effect to a treaty between Her Majesty and the United States of Amer- ica, for the apprehension of certain offenders, by the su))stitution of some other enactment in lieu thereof, then Her Majesty may, with the advice of Her Privy Council (if to Her Majesty in Ctnmcil it seems meet), suspend within any such colony or possession the operation of the said Act of the Imperial Parliament, so long as such substituted enactment continues in force therein, and no longer. Under the authority of the fifth section of this Act, the I'arlia- ment of Canada passed an Act intituled " An Act respecting the Treaty between ller Majesty aad the United States of America for the apprehension and surrender of certain offenders." being the 12th Victoria, chapter 19. By this Act it was stated in the preamble, " that the provisions of the Imperial Statute Avere found to be inconvenient in this Pro- vince in practice, particularly in that part which re([uired the authority of the Governor General before any arrest of a criminal could be made ; and whereas, by the fifth section of this Imperial Act, it is enacted that if by any law or ordonnance, to be thereafter made by the local legislature of any British colony or possession, provision shall be made for carrying into complete effect the objects of the said Act, by the substitution of some other enactment in lieu thereof. Her Majesty might, with the consent of Her Privy Council, if to Her Majesty in Council it seems meet, suspend the operation of the Imperial Statute so long as such substituted enactment con- • .'■- ♦-'• . \ . '■ , i- : ' •'I 1- 1, 'H 'Ill U tn-[ 1»L t > Wi • t im •■•is- ' I if', ••. m li'!.': . 1 154 tinuo ill force, and no l()n;i;of ;" and tlion follow3 the onacti'^f^ntH of the hill doing away with the necesHitv of the Oovernor General'B warrant. By the 5th clause of the Haid Act it wa^ ])rovided that the Act 12th A'ictoria, cliapter 10, siiall come into force ui)on the day to be appointed for that ])»irpose, in any prochiniation to l)e issued l)y the (Jovenior (Jenoral, or person administering the (jlovernment of the Province, for the purpose of promulgating any order of Her Majesty, with the advice of Her I'rivy Council, sus))ending the operation of the Imi)erial Act hereinbefore cited, within this Pro- vince, and not before ; and this Act shall continue in force during the continuation of the lOth Article of the l*rovince, and no longer. This proclamation was made by the (n)vernor (Jeneral on the 28th March, 1850, and was ]»ublislied in the Cnnmht Lhizette at that time. The order in Council re(|uired hy the fifth clause of the Oth and 7th A'ictoria, Impei-ial Act was ]iasscd, and tlie ojieration and authority of the Imjierial >^tatute (Jth and 7th Victoria was there- fore suspended within the limits of this Province, and the 12th Victoria, chapter lit, became the hiw of the Province. 1'he effect, therefore, of the passing of the 12th Victoria, chap- ter 19, was to carry out more completely the stipuhitions of the treaty. V>y the 10th article of that treaty, jurisdiction was given to the Judges and Magistrates mentioned in the treaty. Py the Imperial Act Gth and 7th Victoria, it was enacted that before these Judges or Magistrates could act under the treaty, an autho- rity from the Governor (iencral was necessary, — so far as this is concerned it was a departure from the stipulation of the 10th Arti- cle. Suppose the Gth and 7th Imperial Statute had enacted that the warrant by a Judge or Magistrate could not be entorced, except a previous warrant had been issued under the hand and seal of the principal Secretary of State, surely it would not be contended that such an enactment would not have been contrary to the provisions of the treaty, and that it would have frustrated the very object of the treaty so far as this country is concerned ; what possible dif- ference can it make that the name of the Governor General is sub- stituted for that of the Secretary of State, so far as mere convenience is concerned ? The Governor General, who resides at the distance of one thousanrl miles from the Western extremity of the Province, and the Secretary of State who resides in England, are in a similar position ; and the preamble of the 12th Victoria, chapter 19, declares that the provisions of the Imperial Statute have been found incon- venient in practice in the country, and that it is necessary to change them. This Act, so reasonable in that particular, was passed without objection, and it was not even a reserved Act. It was passed ;; •' ■ lof) by the ci)ncurront action of tlio three branches of *]w Lc^rif^l.iturc of Canada, and became complete, so soon as the Koyal assent throu^^h the Governor General had been ^iven. But the time for this act to come int<» force was loft to tho Governor (Jencral to proclaim, so soon as the ♦)th and 7th \'ict<)ria (Imperial Act ) should have been suspended, and was only neces- sary lor that j)m'pose ; and as it was enacted in the l"2th Victoria, chapter 10, the proclamation announcin;^ the suspension also became necessary. r>iit the Act itself was passed as an ordinary act of Parliament, and jiassed as the Act itself says by virtue of tlie a\ithority ;i;iven to the Parliament by tho fifth clause of the Gth and Tth \'ictoi'ia. 'J'he jurisdiction over the f".i'>' 'ct matter of the Imperial Act, and of the treaty itself in so far as the mode of carrying out the provi- sions (tf the treaty within the Province, is cojr'crned, was ;i;ivcn to this country, and it fell by the operation of tlie Imperial Act, under the ordinary jurisdiction of t!'/ Canadian Pailiament, as all other matters of a local nature fell under the ju.isdiction of Canada, by the I'nion Act itself. '.i'lie mere fact that the ()th ai. \ Tth \' -loria wn ■ a si;.arate Act, and jirovidcd for its comin;^ into force a^ain, n, ^he event of this country not carrying out the provisions of the v vihurton Treaty by enactments of its own, does not affect the cuesiion. 'Die Union Act pive comjilete and ,-i,^ reme authority over all matters concerning this Province to thj Pailiament of Canada. The Act of Gth and Tth A'ictoria gave complete jurisdiction to Ciii.. country over the provisions of the Asli))urt(m Treaty, so far as it related to this country, and to the mode of carrying into eff'ct the provisions of the treaty itself within the territory of Canada. There was no limitation to this authority i)y the Act itself. It was enacted that the mode of carrying into effect the treaty should be regulated by the Provincial Government, and if from the nature of the treaty itself, it could only come into force by Imperial authority, tho 10th article of the treaty clearly embraced the whole of the dominions of Great ^^ritain, and vested in the Judges and jNIagistrates of the two c ^ -■ ' -ies all necessary juri.sdiction, -ind authority for arresting and examining the offendei-^ mentioned in the said treaty. So far as mere jurisdiction is concerned, it was absolutely given by tho ireaty, and the Imperial Act in that respect confirmed this jur^d'ccion. The Ashburton Treaty was passed by the Imperial Govornment for the whole nation, and for that purpose the Imperi'il authority was supreme. By the express provisions of the treaty itself, jurisdiction was given to the Judges and Magistrates of the Province, the consent to this jurisdiction was given by the Crown : 1st. By the ratifica- •V| •i .;. A I '•■,'1 :ii t ;■ ■A ' ,)i ■ m ' H :;'^ p l.-'J 1'>G tion of the treaty. 2nd. By the legislative action contained in the provisions of the Gth and 7th Victoria, with the already mentioned restriction of the Governor General's warraiit ; and, 3rd, hy the provisions of the 12th Victoria, chapter 19, expressly doing away with tliis restriction ; and so far as the surrender by the country of persons charged with offences specially pointed out in the treaty, the jurisdiction was complete. Even if the Gth and 7th Victoria had never been passed, it is difficult to conceive on what authority this country could have refused to carry out the provisions of the Ashburton Treaty. But it is not necessary for me to pursue this point any further, as the full and complete jurisdiction was given to this country by the Act Gth and 7th Victoria, and Ir 2th Victoria, chap. 19, so far as to the manner of effectually carryin*^ out the provisions of the treaty is concerned. I deduce, therefore, from the previous observations : 1st. That supreme authority was given to the Parliament of this country to effectually carry out the provisions of the Ashburton Treaty within the limits of our territory, as it thought proper, and that this authority is to bo found in the fifth clause of the Gth and 7th Victoria, Imperial Act. 2nd. That by the passing of the 12th Victoria, chap. 19, the mode of carrying out the provisions of the treaty is there pointed out. 3rd. That so long as the [jrovisions of the 1 2tli AMctoria, cliap. 19, remained in force, the provisions of the Gth and 7th Victoria were suspended in this countr3^ 4th. That the 12th Victoria, chap. 19, having received the Royal assent, the right to change the mode of procedure pointed o\it, to be observed by the Gth and 7th Victoria, and the substitution therefor of the mode of procedure pointed out by the 12tli Victoria, chap. 19, was an Act clearly v^ithin the jurisdiction of this country, otherwise that Act would never have received the Royal assent. 5th. That if the mode of procedure can be changed Avith the sanction of the Crown, any fcond change not infringing the provi- sions of the treaty is also within our jurisdiction, and that the same authority having sanctioned this change, it is absolutely binding on all the inhabitants of this country. The prisoners' counsel, however, contends that as the 12ih Vic- toria, chap 19, is no longer in existence, that it has been positively repealed, and that, consc8 1!. ,'■•■ P 't far as tlic inliabitauts of tliis colony arc concerned, and all Magis- trates and Judges are bound by it. As well miglit it be ])retended that any other law iu the Statute Book is illegal, as to say the •24th Victoria is not the law of the land. It was in fact doing what the 0th and 7th Victoria authorised the Parliament to do, namely, to substitute (^inadian enactments for Imperial ones, thereby the more ettectually to carry out the provisions of the Ashburton Treaty. It was to do what by the fifth section of Gth and 7th Victoria this country was authorised and empowered to do, and the effect was, as then stated, to suspend the operation of the (Ith and 7th Victoria, so long as any substituted enactments existed in the country for carrying out that Act, and by this law, 24th Victoria, no proclamation and no Order in Council were necessary. It was not necessary 1)y the treaty, and the Order in Council was only necessary by the Act of (Jth and 7th to declare the suspension of the Imperial Act. If no such Order in Council had been made, the local Act would not have had the less force. It was the enacting clauses which declared the sivspension of the Imperial Statute, so soon as a Cana- dian Act was passed, and from the moment the 12th Victoria, chap. 19, became law, the Imperial Act was virtually suspended. It was a mere form generally used in matters of State, and the usual mode of making known the suspension of any law. But in no way was it necessary to make or complete a law. So far as regards the proclamation, it was not necessary to make the law, but merely to announce the time of its coming int force, as it was provided by the 12th Victoria, chap. 19. However, as regards the 24th Victoria, there was an Order in Council, but it was solely to say that the Act 24th Victoria was left to its operation, and to intimate that the Act Avould not be dis- allowed within the two years pointed out by the Union Act. Now, would such an Order in Council have been passed if it had been for a moment considered, that the mere amendment of the 12th Vic- toria, chap. 19, had or could have had the effect of again reviving and bringing into force the Gth and 7th Victoria. The members of the Council and the law officers of the Crown, whose attention was particularly drawn to the provisions of that law by the hen Secretary of State for the Colonies, the late Duke of Newcastle, would not have fallen into such a blunder as to advise her Majesty to leave the 24th Victoria to its operationfif thereby the 6th and 7th Victoria would have again come in force. The result would have been that two laws on the same subject would have existed, repugnant and antagonistic in their nature, which would have nullified each other, and the Ashburton Treaty ik '% f I' 150 itself, the one declaring that the warrant of the Governor General was necessary, and the other utfinning tliat it was n(tt, and hoth sanctioned hy the same authority, viz. : the Queen in (,^)uncil. It is impossihle to suppose that if such had been the effect of ])assin<5 t':- '?4th Victoria, so great an embarrassment would not have been iivolued. The Order in Council, insead of leaving the law of the 24tli Vic- toria to its operation, would have advised her Majesty to have dis- allowed the Act. The Imperial authorities considered, therefore, that the enact- ments of the 24th Victoria, chap. (3, fully carried out the provisions of the Gth and 7th Victoria, by substituting the enactments required to suspend the operation of the 0th and 7th Victoria, in this coun- try, and so long as these enactments existed, the 24th A'ictoria was the law of the land. The argument that the Act of the 12th Vic- toria was repealed by the Consolidated Statutes of Canada cannot aifect the question, for the 24th Victoria was substituted for the 12th Victoria, with all necessary enactments rcciuired by the Imperial Statute (ith and 7th A''ictoria, to give effect to the law. The very terms of the Order in Council on the subject of the 24th Victoria, clearly indicated that the Imperial authorities con- sidered that the subject was exclusively within the jurisdiction of tb"^ Canadian Tarliament : for the words used in the Order in Council, viz : — That the 24th Victoria should be left to its opera- tion, simply according to Dwarris. pages 90-7-8-9, that it, the law, is an affair of an ordinary and local nature. If a second Order in Council had been necessary, according to the argument of the Counsel for the prisoner, although not recpiired by the act itself, such a pretension must clearly rest on the asser- tion that a mere Order in Council and a proclamation have greater power and force than an act of Parliament. The 24th Victoria having received the royal assent, it still had not the force of law, until ller Majesty in Council had approved of it, and ratified it. An assent had already been given by the Queen as the third great power in the rarliament of Canada, but that assent must be again affirmed by an Onler in Council before the Act could become law. If so, there is not a single act in the Statute Book which has the force of law. The proposition therefore is that of Parliament composed of the three great powers of the State, (the only powers which could make a law,) have assented to the law — still the Privy Council, which has no legislative functions whatever, must approve and ratify it before the Act can become a law. This argument in my opinion is untenable ; the 12th Victoria required an Order in Council precisely because the Gth and 7th ■ -i :'■- >. I :i ■ r.. -' I't I, '■•••f ; ,:■"!). '■■i' f., I', ■J ■}■' !l i I !•■ ♦IP t ■ • ■'■I. 160 - i ■it. r Victoria rcfiuired it, not for the purpose of giving effect to the Act of 12th Victoria, hut s I" p. 412. ;hiim any actually ion. We kI States le several iMarshall, ^ delivered in the case of lievaii?<, to sIk-w that the j\n'isdittiou of tho United States extemled ov(>r only the l)istnct of Coltuni»ia, territo- ries, dock-yards, etc., and over such jiiaces as had heeu placed specially \u»der the jurisdiction of the U. S. governmont. Under the Constitution and laws of the U. S., the Federal (JovornnuMit had no power to legislate for States, ov in regard to crimes committed within the jurisdiction of the State of Vermont. The conclusion of Ilis Honor's warrant stated that the olfcnce was committed ai^ainst the peace of the State of Vermont. Could the crime have possibly been committed against the ])eace of any other State, than that Avhich had junsdictiou over it? The conscMiuences were these: Robbery in a State or place not specially under the jurisdictioi\ of the U. S. Govermneut was a crime for which the (lovernment there- of had alone a right to legislate. Vermont had exercised that right in this instance. Taking this into account, the Ctmrt was not called upon to decide as to a point aftecting the general (lovern- mcnt, but which merely concerned an individual sovereign State. He thought his Honor must come to the conclusion that the robbery, if robbery there was, wns committed within the borders of the State of Vermont, and not within the jurisdiction of the U. S., and that conse(]uently the statute (24 Vic.) did not apply in this case, and the prisoners must be discharged. 3ir. Abbott urged the question whether or no there were really two jurisdictions in the United States; one jurisdiction of the Federal Courts, and another of the State Courts ? And, in respect to this particular charge, were these jurisdictions independent of each other ? Had the Federal Courts of the United States any jurisdiction over this offence, or if not, had the Courts of the State of Vermont? And if the State of Vermont had jurisdiction, was it exclusive, or was it concurrent with that of the United States with regard to the robbery committed at St. Albans ? It was con- tended on the other side that it had been proved that this oftence, committed in the State of Vermont, was against the laws of that State. The prosecjttion had even put a Vermont lawyer into the box to prove this fact. But neither in the warrant nor in the in- formation had the attempt been made to prove that this was a crime a-rainst the United States or coLrnizablo by them. The lawyer who had been put into the box had proved that the crime of robbing Brett was one entirely and exclusively within the jurisdic- tion of the State of Vermont, and not cognizable by the United States Courts. He would refer the Court to Wheaton's American Criminal Law, vol. 1, page 155 and following, and by this authority it would be seen that the United States had not jurisdiction over the crime of robbery connuitted in Vermont, or in any State having its own Legislature and jurisdiction. There were, then, two juris- ■i-.i '3 M ■ is-' •f'lt- ..fv| vf ^:l; M :c\ 'n ■■'IP ■ *' i 'i I *■' 164 dictions in the United States, and the offence charged here was one within the exchisive jurisdiction of the State of Vermont. Tlic framors of our hiw a|>|)eared to he well aware of this fact, as they had made jirovisions expressly for those two jurisdictions. The statute 12th Victoria, cap. 11), was evidently drawn up with a careful view of this distinction as to the two jurisdictions, and in this res[>ect har- monized exactly with the provisions of the Constitution of the United States. JJut the 24th Vict., cap. 0, hastily prepared to facilitate the extradition of fugitive slaves, had disregarde ])ri- soners' counsel held the correct view, the treaty would he a nullity. There could he no extradition for anv offence connnitted against the laws of the United States proi)erly so called except in the small District of Columhia. lie helieved that the tiraty and sta- tutes passed to give it effect nuist he construed in the most liberal and not the most narrow manner, and that the United States (Jov- crnment had power to extradite as regards everv State in tlio L nion. ■Mr. Devlin followed on the same side. 3Ir. BdJnine contended that the Court could not put upon the words "within the jurisdiction of the United States" the strict interpretation given them by tlie Counsel for the defence, and cited authorities to show that in interpreting statutes the real intention would always prevail over the literal intention or ex- pression. The preamble of the Act must be considered as a part, and explanatory thereof; and the 24th Victoria judged by this principle, and receiving its proper broad and liberal interpreta- tion, vould sanction the view of the prosecution, that the United States had power as regards every State of the Union in the mat- ter of extradition. "Was it to be supposed that while (xrcat Britain treated respecting the extradition of criminals from all parts of her broad empire, the United States was to be understood as agreeing to extradite with reference to only a few small sections such as the district of Columbia ? The words of the treaty bearing upon the subject were — " offences committed within the jurisdiction of either nation." The statutes used the same phrase. The only ques- tion was — Was A''ermont within the jurisdiction of the United States ? Every witness swore it was. Wo were bound to give the broadest meaning to the word "jurisdiction" in this case, and could not say it meant the j\ulicial jurisdiction, but meant " within the territorial jurisdiction of the United States." The learned gentleman cited several authorities, including " Yattel," in support of his views. ,'' p ''I '4 hi KIG • ■ r Si Mr. Kerr was astonished to lieo'- the arguments of his learned friends. I'he State of "WM-mont iiad t cases of this description. AVe have seen members of the (Joveninient go to Washington to promise that we would be good boys in future, lest General Dix shoidd come over to Canada and rescue the piisoners from our justice, so that they might be given up to their justice. ]>ut no matter how the Government of this country had interfered in this case, he (Mr. Laflamme) was certain that this Coiu't would deal bv these young men as the t %/ CD principles of ]>ritish constitutional law directed. Jud(/<' Smith — I will take the case into consideration, and give my decision on Tuesday. The Court then adjourned. Tuesday, Jan. 10th, 18G5. His Honor Judge Smith gave decision on the [loint raised by the counsel for the defence on Saturday, as follows: — This objection rests on the ground that the offence charged is not covered by the Ashburton Treaty, that it is an offence aiuainst the State of W'rmont ; and as the State jurisdiction of Vermont is 1G( learned Federal )f juria- •y could nmitted icnt had hnt of )e made opinion ivcn up, if future fficidtiea s Court (?ir due. justice tlio rcn- s had a lit ; the iction of ^nizable lie claim and the r autho- Wc had lion to law in iiembers ould be Canada light be ment of ae) was as the id give .805. ised by d is not nst the mont is separate from, and independent of the jurisdiction of the United States it is not covered by the 2ith Victoria, cha|>, (>, which speaks of offences committed within the jurisdiction of the United States alone. 'i'hat the jurisdiction of the United States, and that of several States, are separate and imlependent of each other, and regulated by positive law. That the l"2th Victoria, chap. 10, acknowledged this distinction by speaking of the jiu'isdiction of the United States, ('/• of itnii I'f HHch *S7(/^'.s, thereby covering all offences conunitted either within the jurisdiction of the United States, or of iihi/ such Stati'H, and that the 24th Victoria, chap. G, having (»niitte(l these last words, vi/. : "or of any such States," that it necessarily and intentionally restricted tlie operation of the Ashburton Treaty to olfences committed solely within the jurisdiction of the United States. 1'hat it has bei>n proved in this case by the evideu(.'e taken in support of this application, that the oU'ence charged against the pviooners was conunitted within the jurisdiction of the State of Vermont and against the laws uf that State alone, although within the Territory of the United States, that it does not fall within the Statute 24t!i Victoria, and coasecpiently the prisoner is entitled to his discharge. I have tlius stilted the objection in its broadest posrj»o-;t' th.it the word jurisdiction can bc> hero us;'d in a limited slmi-c, as eitiiei" expressing or intending to im;)ly the jurisdiction of any State or of any Court is necessarily to suppose t!iat these inferior jurisdictions would have exercised any powtu- what'^vef over tbi- suljeet matter of tlie treaty, or to s;i[>pose that tlie Supreme Federal authority having leg-.slated, the eafire nation had wiliuUv restricted tlie objects of tlie treaty if ■;!•; ;■.■)• 'Ki ■ ,*' ■ >:y^ v^ '"''■^il'l .'••, ') . ( ; ■ '■ I 108 ■. ; !' m 1 • to a small jrart onl_y of its own territory, a s'nv>'>'ritaiii, and l»y that hi •• .i provision is made for the surrender of ]>ersons ehar;:;ed with oflencesconim'tted within the jurisdietion of the Tiiited States, and who shouM he found within the territory of (ireat iJritain. Tlie word jurisdiction here must, therefore, mean territory, and must mean the territorial jurisdiction of the nations, oi-it can mean notliin;^. 'J'lie same meanin;^ is ;j:iven hy the Act, where power is ;^iven to nia;^istr;(tes and judges of hoth nations, and the wlioU' law itself clearly indicates what J'arliament intended, when the word jurisdiction was used. So also in the Unit'^d States, where this treaty Avith otlier treaties of the same nature, received le^^islative force hy Con;;ress. Congress le;i;islated for the several States as well as the I'nited States, llurd, on Jlnheas Corin(H,an\Y,\^(i^~\\ says : " The duty of surrendering the fugitive arising only from Treaty stipulation, its performance is supposed to appertain to the Executive department of our (Jovernment, which hy and with the advice and consent of the Senate, constituted the treaty makintj; power; and hy the discussio)i which took |)iacc in tlic case of Holmes and Jennison et ah, in 14 Peters, it was settled tliat no (Jovcrnor of any State had power to deliver uj) to a foreign Gov- ernment a person charged with having committed a crime in the territory of that Covenmient." Thus it a|)|>cars evident that the Government of the United States and the Supreme Court of that Government concurred, that in treaties the words jurisdiction and treaty were convertihle terms. So far, therefore, as the Imperial Act is concerned, there can he no possihlc difficulty on this point. Eut the Canadian Parliament in legislating on the suhjcct mider the power conferred on that hody hy the Act of Gth and 7th Vic- toria, introduced into the first clause of llith Victoria, the words which have given rise to the difficulty. That Statute said throughout the Act, that surrender sliould he made hy reason of offence committed within the jurisdiction of the United States, or of any of the said States, therehy de]»arting from the words of the (Jth and 7th \'^ietoria and of the treaty itself. And so throughout the said Act 12th Victoria, the same words arc used. These words, so unnecessary to express the ohjects of the treaty itself and the (Jth and 7th Victoria, have given rise to the idea, that it was the intention of the Legislature to make the word jurisdiction, used in the treaty, and in the Gth and 7th Victoria, to be understood to he used in its limited and suhordinate sense, and therehy to create the same distinction in this Act, in explaining i 1»)9 I troatv ftlilir'atioiis wliicli exists when the wmd is »is(m| in its limited ami siibonlinato soiiso, to express the distinction lietween Kodoral and State jurisdictions, or in Courts of Justice. This was cK'arly a mistake of tlic Le^^ishiturc, and beyond its authority to do. For such distinction, if it couhl exist at all, would have ('handed the contract between the two (Jovernments, and would have nullified the treaty itself — a power which the Tarlia- ment did not possess. l>ut it is clear to nu', from th--^ whole act, that the additional words were used not in such a sen.-:e, Imt from extreme caution, and a desire more fully to cxjilain that the word jurisdiction used in the treaty, was to extend over the several Slates in the same sense in which it was used when applied to the I'nited States, althou;:;h this was alt<»;j;ether inniecessary,and was calculated rather to confuse and to create doubts, than to remove them. The li4th A'^ictoria, tliercfore, removed these words so im})ro- [terly nsed in the llith X'ictoria, chap. «>, thereby restorin«^ the word *' jurisdiction " to its true and ori;!;inal ^neanini:, as ;;iven to it by the treaty, and by the 0th and 7th ^'ictoria. The third sec- tion of the 12th N'ictoria clearly show how improperly these words were nsed. For by that section, power is there ;;iven to any (Jovernor of any ]»artie»dar State to apply for the rendition of any person char«^ed with crime, with power on his side to surrender to this country any person so charged, and found witliin the limits of his jiarticular State. Such a power does not exist. It is neither to be fonnd in the treaty nor in the Imperial Act, and it is not to be found in any Act of the Congress of the United States. Thus, Chief Justice Marshall, in answer to a cpiestion ])ut in the argument on the ])oint, (see his work on the Federal Constitution, page 142-8) : What is the jurisdiction which a State professes ? *•• ^Ve answer without hesitation, the jurisdiction of a State is co- extensive with its territory, eo-extensive Avith its legislative power." This is undoubtedly true. The argument, when apj>lied to the United States, is clear. Thus the jurisdiction of the Federal Government which is supreme, is as extensive as its legislative power. This legislative power extends over the whole United States in reference to matters exclusively Avithin its functions, such as the treaty making power. Therefore Congress, being the legis- lative power, has exclusive jurisdiction over the territory of the United States in this respect, and, therefore jurisdiction and terri- tory arc convertible terms, when used in the sense of the treaty power. Now, the separate States, in this respect, have no legisla- tive j)ower whatever, and, consequently, they can have no jurisdic- X V ..a 'I'm 0^ lit '■■'*■ it'' 7'% .:''■• if I • '■'•i' k\ ■w, '■■■i ;^.f ':%:: .» 170 fl. ! ! \ i<\ tion in the matter, and, if thev litivo no iurisdiction over the sub- ject, it is incontrovertiMe that in the sense and meaning of the Act tliere can he no State jurisdiction Avhich can come in contact with the rY'deral jurisdiction exjircssed in the Statute, and, conse- (juently, in tlie treaty, and in (he hiw, tlie word jiu'isdiction nmst mean territorial jurisdiction. 'J'hus it is cleai* that the words " or of any such State " so used in tiie 12th A'ictoria, chap. ll)th,were improperly introduced, aiint, within the juris- diction of the United States, is properly stated, and is necessarily within my jurisdietion. The jurisdiction over the offence, that is the crime, is the Static jui'isdiction of Vermont, but the jurisdiction over the subject of the treatv is in the Federal legislature of the U. S. The offence must be desi_!j;nated as a,<^ainst the State of Vermont, and so it is iii the warrant. The objection is, therefore, overruled. Mr. Devlin said that t!ie jirosecution had finishe(l tlieir case, but that if the defence adduced evidence ho W()uld be ])repared to oppose it. The volinitary examination of tlie prisoners was then proceeded with. Jj. Ji. 11. )^oiin;/\'< si'atonciif : — I am a cili/.en of the Confede- rate States of America, and a soldier in their serviee ; 1 hold and herewith produce my conunission as first lieutenant in the army of the Confederate States, and the instructions received at the time that commission was conferred upon me, resei'vin;j; the ri,L!;ht to ])ut in evidence the further instructi(»ns I have receive^ht will ;iive me ri,i:lit, thou,L:;h tlie Heavens fall, anil that his sense of justice is far above (Jovernment inlluence and the clamor of the leariul. The ilair of the empire has been an emblem of protecti(Mi t<» the oj)pressed and out-cast alien f<»r many a Iouli; weary ye.ii- : and it will not I'ail to ;:ive nie that im- partiality, which has made it the joy of the fu^dtive for a,trcs past. I have but done my duty as a (N>nfederate soldier, and am willin;^ to abide the fate conse(iuent tluM-eupon. All the men with me at St. Albans were either Confederate officers or soldiers, ami upon man}' a hard fou_i;ht battle-field tliey have jiroven their de\otion to Southern rights and the Southern cause. And should we now be called upon to yield our lives in its defence, the partinu; words of Hon. Jas. A. Seddon, Secretary of War for the Confederate States, will bo verified. They were these : " Lieutenant, you ;^o upon a daii^^erous mission, and you and your command shall be lully jiro- '••i »''V' i • „V' I- .i x'V ••^'i ■.-.if ^ Ml. i u 172 tectcd." And 1 assure the ^rood noonlc of St. AHmiis that the da \i pon w [)00p hicli 1 die will be one that \vill hrinii a uail to tlie best famiHcd in the Green Mountain State. My death sliall be avcn;^ed, and tluit in tlie blood of Vermont office rs. AnS'. T. TeavW statement: — I am a native of Kentucky, a'soldier in the Confederate States army. I owe my allegiance to the Con- po to federate Government, and not to the Yankee Government ; What I did at St. Alhans was in the capacity of a Confederate suhlier, in obedience to the orders of Lieut. Yoiuig, a Confederate officer. I violated no hiws of Great Britain or Canada. Charles Moore Swaf/er^s statement: — I am a native of Kentuckv and" a Confederate soldier, owin^ no alle<];iancc to any <^overinnent but the Confederate States of America ; [ was captured a prisoner of war by the Yankee forces last May, and effected my eseajx' from mv enemies at Chica;j;o, while on my way to prison. I joined Lieutenant Youn;^*s conunand at Chica,!j;o, last Au;:;ust, and j)artici]>ated in the St, Albans raid. I feel it my duty as a soldier, to harass and an- noy the army and navy of the United States, cripple and destroy its shippin<^ and commerce, capt\n-e and burn its towns and cities, and ot'ierwise dama<5e, if possible, a (iovernment which seeks our destruction ; my object bein;^ to remove, in a manner, the seat of war to the heart of the New Kn,^land States, and make their people feel some of the horrors of war, in retaliation for the crimes and outra^ies inllicte*! on the weak and defenceless women and children of the South ; any acts I mi^^ht have committed at St. Albans was in the capacity of a Confederate Sfddier, acting under orders of Lieut. Youn;^, a commissioned officer of the Confederate army. I look to my Govennnent for the reward which a soMier who has performed a hazardous and danj^erous duty has a right to expect, 1 • r»ii iiiijil 1 1' II lO i.1 '11' , * f know owing full well that the people of my beloved South will justify 1 apjilaud my conduct. 1 have violated no laws of Gre.it Uritain anu ap[i or Caiiiula. Mr. Abbott then presented the followin tliirty days delay. g petition, asking tor PROVINCE OF CANADA, b,,,^,^ H. Young and ^farcus DistrU of Montreal, ^ \ ^purr. two of the prisoners whoso Lower Canada, to wit: ) extradicion is demanded, de- posing on behalf of thcmse'ves and of their fellow prisoners in this matter being severally duly sworn, do depose and say : That dofionents and the other prisoners charged with the offence now under investi- gation, renuirc certain testimony which is necessary and material to their defence, and which they are unable to procure in Montreal, or even in Canada. That such evidence will establish amongst other things that every one of the prisoners now in custody is an officer or soldier of the army of the Confederate States of America, duly enlisted, enrolled or commissioned respectively, and that their term of sorvicc has not expired ; That this deponent, Bennett 11. Young is, and was on the nineteenth day of October last, an officer :.; I •':;.i '■■r. ! 11 'I- .1' l») ■I N' I ..J 174 of tlic army of the ('(iiiftMlcrati' States of Aineriea, holding the com- iiiision and rank of first lieutenant in that army ; and that the otho" ■condition to 'w ;iM;> to (IcIiMul tlu'ini'^oi\ i\s, the iiaUirc of wliit'li they cannot (Usclosi' without inij)cnllin_!i; their ^iiecess. That (lepoiKMits have since received inl'orniation and assurances upon Avhieh they l)elieve tliey can rely, that tlie evidence they require anIr. D.) p'otested against the introduction into the affidavit of statements as to the execution of vengeance upon the raiders in the event of their rendition to the authorities. Such statements were an infringement upon the honor of the Court. If the prisoners v/ere commissioned by the authorities at Rich- mond, tliL lattvM should have taken the precaution to furnish them with the evidence of it, and of the belligerency of their acts. Taking it for granted they were sent al)road to commit murder and robbery in St, Albans, in a peaceful, defenceless place, they should have been fortified with all the authority that the so called Confederate States could confer upon them, in order that their lives might not be exposed to the consequences of .1 177 '■>■*] ics of the crimes they had committed. If such wore acts of war, and were to he justified on that ground we had a right to say — we are neutrals determined to do even-handed justice, show us your authority to commit such deeds against your adversary. The learned gentleman concluded hy ridiculing the application as one that should not for a moment he entertained hy the Court. The delay asked for, he added, would simply amount to a denial of jus- tice, and to a total extinction of the case. Mr. Johnson said that this affidavit prayed for a delay. Now two questions arose : first, for what purpose was the evidence intended ? second, what were the grounds for not suhmitting the evidence that could be procured here ? In another Court he had opposed an application of this kind, and he would do so here. He contended then, and contende*! now, that in a preliminary investigation like this one, such an application could not bo sought for, as it was entirely outside the scope of the treaty, under the terms of which a magistrate must commit where there are just grounds for suspicion. This was all that our magistrates had to do. Either these men must be tried by the Courts of the United States, or not be tried at all ; and to say that the treaty contemplated that offenders, for whose extradition the United States made apj)lication, were to have their guilt or innocence tried and pronounced upon in our Courts, was to say that we had degenerated from a state of civilization into a nation of savages, unable to make treaties or to enforce them. The affidavit did not state what was the nature of the evidence to procure which a delay or thirty days was praye and says, '■ 1 saw you strike a man down and kill him on the street. " Hut siiji- posc the man accused turns round ami says, " T nuist he permitted to tell the whole story, and shew that the party whom T struek down was following me from hehind with a hatchet to kill me, atid tliat I shot him in my own defence. Now, supposing such a case, would the offence he murder ? Not at all. Ap])1y, then, the same rea- soning to this case ; the prisoners say that they were in St. Alhans : that they committed certain acts there, hut that they were justified in so doing, as they acted under the instructions ol" their <:overn- ment, a thing which they were hound hy their allegiance to do. Now, these men say — '' we did these acts, hut give us an oppoi- tunity of showing that we had ample authority and justification foi- these acts. " Technically speaking, these men cannot go on their defence hefore me. But if they show connnissions and j>rove that they are helligerents, then, possihly, there must he an end of the matter. Mr. Abbott. — The distinction which I am prepared to estahlish is this: — If it he really a case of conflicting evidence, the fact of the crime being committed being proved, that is no case for a Magistrate to try ; it is not within his jui-isdiction to do so. jud(/r Smith. — Clearly not ; it is none of my business. Mr. Abbott. — l>ut if, on the other hand, the })risoners propose to shew that the act committed does not constitute a crime for which extradition could be demanded, that is a (piestion which the Judge must investigate and decide. In doing this he does not try the robbery, but tlie application of the treaty. The prosecution shovdd be content to limit themselves to the (luestion of delay before the Court ; the magnitude of the questions involved, if your Ilonoi is called upon to decide now as to whether the evidence is mate- rial or not, should induce the prosecution to confine themselves to the matter now before your Honor. Judge Smith. — The question of the admissibility of the evidence is a very different thing from the relevancy of the evidence. No ' ■ -,.'i. '(■P Mi % 180 - 1 ! I, verbal testimony can be received in tho way of proof. If the pri- soner Young ha<'<>w it is the 11th of January, and seven days have been occupied en delibcrc. In fact the case has gone on with great celerity, when the amount of labor connected Avith it is taken into consideration. As to the present application, my impression is that I should grant delay. I do not wish to be obliged to give my reasons for this opinion at the present time, and it is within my discretion to hold back any opinion at this moment on the facts. But is there any argument to be offered by the prosecution ? 3L'. Bethune. — I don't withdraw the opposition I made yester- day in the slightest degree. I am satisfied, looking back at the whole history of this matter, that all this is merely for delay. There is an application for a delay of thirty days, in order to send to Ilichmond, and for what ? For the very instructions the priso- ners said they received. Your Honor has ruled that there can be no verbal proof, therefore the prisoners should produce the specific ordoi'S they received from Richmond. Why are they not produced ? Mr. Abbott. — Does my learned friend imagine that a lieutenant wouM carry instructions from the Secretary at War on hiL' person ? Mr. Devlin. — We ha\J no power to control the action of the Conn hi this matter of granting delay, but I protest against it. Judfje jSmith. — I have not given any judgment as yet, Mr. Devlin. ?Ir. Devlin said he solemnly protested agairi3t this delay; and, if it were granted, he doubted very much whether ho would ever be instructed to appear in this case agrin. It was the second time in the histn3 the priso- thcre can be c the specific ot produced ? a lieutenant n hiL' person ? action of the Lgainst it. as yet, Mr. s delay ; and, 3 would ever 3 second time d voluntarily nd had been ourt, charged the evidence )f thirty days soners, when last, to have )ring forward en to requ'^st 181 the Court not to call upon them to enter on their defence till they were fully prepared. This application for thirty days' delay was made without there being a tittle of evidence to show that dili- gence had been used to It tain evidence for the defence. There was no ])recedent to justify a delay of this description. The Ameri- can authorities did not show a single case in which, on their side the lines, such an application had ever been granted in behalf of a fugitive claimed by us under the treaty. He doubted if an appli- cation of this kind was ever even made in our or the American Courts. If this delay was granted, he really thought that the Extra- dition Treaty would, as far as Canada was concerned, be considered a dead letter. Judge Smith thought that Mr. Devlin in his remarks, regarding the Court, had gone a little too far ; he (the Judge) had simply ([uestioned the counsel to know from them if it was necessar o hear an argument of the case. lie had stated his reasons why he did not wish to decide thi-^ it peremptorily. He had given no reasons fur his inclination to ait this delay, or for declaring his wish in the matter ; yet Mr. Devlin had attacked him as having decided the case unadvisedly, and, without hearing the Court's reasons, had almost charged it with a denial of justice. Now, taking the latter considera- tion alone, what denial of justice couhl result by giving the prisoners a delay of thirty days ? If they could not produce any evidence of the kind they wished, when^ was the injury to the prosecution ? — those unfortunate prisoners would have to be surrendered. IJut if they should produce evidence to change the opinion as to their liability to extradition, surely no one could complain, if the testimony be according to the rules of law and justice. Where was the injury ? None possible. The Court did not mean to say that what the defence desired to produce might be beneficial ; but the delay would simply give the prisoners the means of saying all they could say in justi- fication of the act which their opponents designated an act of robbery, but which they themselves contended was an act of war. If they were robbers they could not escape from the position of such, even granting the delay. In order, therefore, to enable him (the Judge) to judge accurately and correctly as to the position and (juality of the accused, and consecpiently as to the nature of the offence cijarged, it was but fair to those men to hear what they had to say. AV^hether his opinion would be borne out ultimately, when he came to assign his reasons, was another matter. Mr. Bethiuie. — But we can't withdraw the point we raised yester- day, as our view of this matter. The Judge. — No ; but it maybe reserved, and heard on the merits of the case. The great argument of the prosecution was, " why did not theoe men produce the })apers reipiired as evidence in their :: i '/^'n ; ,v Ik • ■III I ■ ■ W .■}^4 k •.I AM \ ■■< IMAGE EVALUATION TEST TARGET {MT-3) 1.0 I.I 1.25 UiK» |2.s 150 "^" HMi^ 1^ M 1.8 U ill 1.6 <- V v^ ^ s^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 877-4503 f/. Kl ^ :br. m- . • H! {. » .; ; t !■ 182 defence before ?" Now, we knew the position in which their country was placed, and the difficulty attending a journey to Richmond. How was it it possible to get within even a reasonable distance of that city at present ? The prisoners were placed under great disad- vantages in this respect, and it was the duty of the Court to afford them the means of, at least, making known the nature of their defence. Considering the difficulty and danger encountered hi reaching Richmond, the delay asked was not extravagant, and not of a nature to defeat the ends of justice, according to the Court's opinion. It is clear to my mind that anything like verbal testi- mony in this matter will be insufficient. Mr Abbott. — We will endeavour to give you the best evidence, and in any case we shall proceed according to the rules of evidence. And if we offi3r evidence admissible under those rules, we expect it will be received. Tlie Judge. — Oh, clearly. Mr. Abbott. — I shall not argue the question on its merits, aa the Court is disposed to grant the delay. But notwith- standing the statements of the learned counsel, I maintain that this application is by no means unprecedented. On an application recently made in Toronto (Burley's case) the Court granted thirty days' delay for the same purpose ; and Judge Short, of Sher- brooke, also lately granted what he considered a suitable delay for a similar object. Judge Coursol had also given thirty days' delay in this case for the same end. They bad administered justice in the United States, on occasions like the present, whexi their passions were not excited as now, in a similar manner ; and there could be no doubt, many instances could be cited in which the United States Courts had granted delays to parties desirous of showing that no ofiFence had been committed under the Treaty. In the very case cited by the opposite counsel yesterday, in which the plea of insanity had been urged, the Attorney-General's decision showed that the plea had been thoroughly investigated. Then, again, in the case of the deserters from Halifax, whose extradition from Boston was demanded — not on the ground of their being deserters, but of having committed a robbery — wdiat was the answer ? 3Ir Bethune. — The case there turned entirely upon the word robbery." The men had stolen the military chest, audthe Court held it was a larceny and not a robbery. Mr Abbott. — I get my information not from any special law report — for I have been unable to discover any — but from the ordinary newspapers, and I understand that the extradition Avas refused be- cause the deserters' crime was complicated with their desertion — -^n offence of a character not contemplated by the Treaty. We all know that when McKeuzie murdered or caused to be murdered u 183 Colonel Moodie, and fled to New York, the Governor of the State refused to issue his warrant of arrest, that the demand for his ex- tradition might ))e tried. The Attorney-General of the State then gave his ophiion that there could be no extradition in such a case at all. Though tlie treaty had not then been passed, the State Judges were disposed to extradite as a matter of comity. Mr Devlin. — But never did. Mr Abbott. — Many Judges, and Chancellor Kent, held they were bound so to do. The only ground on which McKenzie's extra- dition was refused was, that we had a rebellion in the Province. The then Attorney-General of the State of New York set forth, in an elaborate opinion on the case, that there was no instance in the history of International law of an extradition being granted where the fugitive's offence was complicated with any crime of a political nature. We know also, in the case of McLeod, who went to cut out the " Caroline," when on the American side of the river Nia- gara, that though he had no written instiuctions to justify the act, yet in consequence of that act having been adopted l)y the Govern- ment of this country, the Federal authorities, through their Secre- tary of State, acknowledged it was a sufficient answer to the charge of murder preferred against him, and that he should never have been tried by the State Court. 3Ir Devlin. — I admit that. But the circumstances were different from those of this case. Mr Abbott. — Oh, the circumstances were different, as we shall show by evidence we intend to put on record. There was no national war at the time of McLeod's act, and besides, he held no commission in the British service ; and tliere was no acknoAv- ledgment by the United Statesofany belligerent powers in Canada. There are a dozen points in which the case of Lieut. Y^oung is infinitely more favorable than that of McLeod. I merely mention these facts to show that the assertion that a delay of the kind asked be unprecedented, is entirely fallacious. I could produce many more instances if necessary. Mr Devlin said the steamer " Caroline " had been engaged in carrying munitions of war to the Canadian rebels, and that the party who attacked her was specially instructed by Sir Allan Mc- Nab. Mr Abbott. — I only referred to those cases to establish the general principle. The Judge. — I am disposed, under the circumstances, to grant the delay asked for ; and believe it is best in every point of view to afford every possible opportunity to both parties to bring forward what may benefit either. His Honor, Counsel on both sides having consented, remanded the prisoners for thirty days, till 10th February next. '■"'T'l 'V * Jt;y. v''. '.'";i ■ •■•vmMMmMpM i!» 18i I/'" Friday, 10th Feb., 1865. 1'1 M' '}5«> i-fe;:-.- i I! M' : i On the demand of the President of the United States, for the extradition of Bennet H. Young, et al.: Hon. Mr. Abbott said that in consequence of circumstances which had occurred since the application for the 30 days' delay had been made, he should be obliged to make another application for an extension of that delay,. the reasons for which were set forth in the following affidavit : Bennett H. Young and Marcus Spiirr, two of the prisoners whose extradition is sought in this matter, being severally duly sworn, depose and say : — That immediately upon the granting of the delay of thirty days awarded to them by the Honorable Mr. Justice Smith, for the purpose of obtaining from Richmond, in the State of Virginia, one of the Confederate States of America, seceding from the Union of States, heretofore known as the United States of America, cer- tain documentary evidence material to their defence ; these depon- ents and the other prisoners in custody on the said demand caused messengers to be dispatched by different routes to Richiiond afore- said, Avith directions to penetrate through the lines of the said United States, the parties prosecuting in this cause ; and to obtain from Richmond aforesaid, the documents and evidence already described in the affidavit already fyled in this cause on behalf of the said prisoners, on the 10th day of January last past. That the first of the said messengers, namely Lieutenant S. B. Davis — an officer in the army of the Confederate States of America, who volunteered to proceed to Richmond aforesaid, Avith despatches specifying the documents required, and requesting their transmission — was so dis- patched on the tenth day of January last past, and was arrested by persons in the employ of the said prosecuting parties, the said United States, and was by them detained, on the pretence that he was a spy of the said Confederate States ; and was subjected to a trial, before a tribunal termed a general court-martial, convened under the orders and direction of the said prosecuting parties at Cincinnati, in the State of Ohio, and composed of their officers, upon the charge that he the said Lieutenant S. B. Davis whom the said prosecuting parties arraigned before the said court-martial under that name, and also under the name or alias of Willoughby Cummings, was a spy within the meaning of the laws of war, and that thereupon the said Lieutenant Davis, was by the said tribunal found guilty, and sentenced to be hung by the neck until he should be dead — which finding and sentence were confirmed by Major General Hooker, an officer of the array of the United States com- 185 raanding the Department wherein the said court-martial was hekl, and were by him ordered to be carried into effect on the seven- teenth day of February instant. The whole notwithstanding (as these deponents are informed and believe) that the said court-mar- tial and the said Major General Hooker well knew that the said Lieutenant Davis was not a spy, but a brave and disinterested man, who had voluntarily exposed himself to the risk of any contingency that might happen to him, that he might aid in placing full evidence before the presiding judge, respecting the matter under examina- tion in this cause ; and that he was not charged with and did not carry any other despatches or information than such as was exclu- sively connected with the proceedings in this matter. And more- over that these facts were all stated by Lieutenant Davis to the said court-martial upon his trial. That these deponents have been credibly informed and believe that the following is an exact copy oi the general order of the said Major General Hooker containing the record of the said trial and sentence and his approval thereof: Headquarters, Northern Dep't, ) Cincinnati, Jan. 26. \ GENERAL ORDER NO. 4. Before a general court-martial which convened at Cincinnati, Ohio, Jan. 17th, 1865, pursuant to special orders Nos. 212, 250, and 273, series of 1864, from these headquarters, and of which Lieut.-Col. E. L. Webber, 88th regiment Ohio Vol. Infantry, is President, was arraigned and tried S. B. Davis alias Willoughby Cummings ; chrrge, being a spy ; specification is Ihat said S. B. Davis alias Willoughby Cummings, a rebel enemy of the United States, and being an officer of the so-called Confederate States of America, did, on or about the first day of January, 1865, secretly and in disguise enter and come within the lines of the regularly organized military forces of the United States, and within the States of Ohio and Michigan, and did then and there secretly and covertly lurk in the dress of a citizen as a spy, and on or about the 12th day of January, 1865, did attempt to leave the said States of Ohio and Michigan, with the purpose and object of going to Rich- mond, Va., there to deliver despatches and information from certain parties, whose names are unknown, hostile to the Government of the United States, to Jefferson Davis, President of the so-called Con- federate States of America, but was arrested as a spy, on or about the 14th day of January, 1865, at or near Newark, within the said State of Ohio. To which the accused pleaded as follows : To the specification guilty, except to the word " lurk," and the phrase " as a spy," to the charge not guilty. Finding and sen- tence : The Court, after mature deliberation on the evidence ad- •i'J- "i ; ..' r '■f ■■¥ ■^fl . . •V'rT ;^ « ■I il ■ ^^^M '; 1 1SJ2 P Nv- I* < 1 IHii-r' * p i i '1 , '■ ■ 1 ei^':- t N i i ^ i I i if 18(> duced, llud the accused as follows : Of the specifications guilty, the members of the Court concurring therein, and the Court do there- fore sentence him S. B. Davis alias Willoughby Cummings, to be hung by the neck until he is dead, at such time and place as the commanding general may direct, two-thirds of the members of the court concurring therein. The proceedings, finding and sentence in the foregoing case of S. B. Davis alias Willoughby Cummings, are approved and con- firmed. He will be sent under proper guard by the commander of the post at Cincinnati, Ohio, and delivered into the custody of Col. C. W. Hill, commanding at Johnson's Island, who will see that the sentence in this case is duly executed at that place, between the hours of ton o'clock a.m. and three o'clock p.m., on Friday the 17th day of February, A.D. 1865, and make the report thereof to the commanding-general. By command of MAJOR-GENERAL HOOKER. C. H. Potter, Asst.-Adjt-General. That the parties referred to in the said General Order as " cer- tain parties whose names a*c unknown, hostile to the Government of the United States," are these deponents, and the said prisoners; and that the despatches and information therein also mentioned had sole reference to the present enfjuiry. That the said Lieu- tenant Davis is still detained in custody by the said prosecuting parties, and the cruel sentence passed upon him is yetuncommuted, so far as deponents know or have been informed. That on the 14th day of said January the said prisoners despatched their second messenger to Richmond aforesaid, and for the purposes already mentioned, from whom they have as yet heard no tidings whatsoever. That on the 17th day of said January the prisoners despatched their third messenger to Richmond aforesaid, and that they have received information that he left Washington for his first attempt to penetrate through the lines of the prosecutmg parties on the 21st day of said January ; but that they have not heard of or from him since that period. That on the 24th day of said January, the same behig the day after they were informed of the capture of Lieutenant Davis, the said prisoners sent off their fourth messenger to Richmond aforesaid, of or from Avhom they have since heard nothing. That in addition to the said four messengers, the said prisoners sent despatches requestir.g the transmission of the evi- dence referred to in their said affidavit, to the Government of the said Confederate States at Richmond aforesaid, by a person leav- ing Montreal early in said month of January, with the intent to proceed to Richmond on his own affairs, but that the said person was captured in Wilmington, in the State of North CaroUna, by 187 of cer- by the armies of the s.iid prosecutiiit:; particL^, and was \>y tlicm re- leased upon parole in the United States, they bein^j; i.ifTiorant that he bore such despatches ; and that lie has since made his way back to Montreal without haviufi; been able to deliver such despatches. That deponents and the said jn'isoners, determined also to try the ofTect of a direct a])peal to the President of the said United States for a pass or jierniission to a messenger to proceed to Richmond aforesaid, for the purposes aforesaid, and to that end despatched J. : f ; ■ I:. I I I* L - ' ' ■ ) - i ! . i I !,|-^1 m i ii| IP ( ' i: 188 That in addition, Mr. John G. K. Houghton h.ad been despatched to Washington by the prisoners to make a direct appeal to the President for a pass to allow him to proceed to Richmond, but had been refused, as appears by the following affidavit : DA, 1 t. \ DISTRICT OF MONTREAL. PROVINCE OF CANADA Lower Canada, to Wit. In the matter of the demand of the United States of America for the extradition of Bennett H. Young et. al. : John Q. K. Hougliton, of Montreal, in the district of Montreal, Esquire, Advocate, being duly sworn, deposeth and saith : That on the twenty-fifth day of January last past, at the written request of the said prisoners, Avhich is hereto annexed, marked A, deponent proceeded to Washington for the purpose mentioned in the said request. That on the thirtieth day of said January deponent wrote and sent to the Hon. William H. Seward, at Washington aforesaid^ the letter herewith produced, marked B ; which letter was by him received the same day, and an answer thereto was also on the same day returned to deponent, which answer this deponent re- ceived the next day, and which is hero«witli also produced, marked C ; and that the letter of deponent and the documents therein referred to were also returned to deponent in the said letter. That on the thirty-first day of said January, deponent obtained an inter- view with His Excellency the President of the United States, and urged upon him to grant the permission which deponent had been required to procure ; But that His Excellency declined to grant such permission, or even to allow deponent to proceed to General Grant's army, that this application for documents might be sent over to the army of General Lee by flag of truce or otherwise. His Excellency's words being in speaking of the said prisoners, that that they were rebels ; that they had been cutting and slashing around ; and that he did not see that it was any part of his business to help them. That, however, His Excellency requested deponent to endeavour to see the Honorable W. H. Seward on the subject, and gave to deponent a card for Mr. Seward, on which His Excel- lency wrote the following words : " Hon. Sec. of State, please see this gentleman, who is the gentleman from Canada spoken of yesterday. A. Lincoln. Jan. 31, 1865." But that on pre- sentation of the said card by deponent in person at the office of Mr. Seward, accompanied by a request that deponent might be permitted to see that Honorable gentleman, said request was peremptorily refused. That deponent thereupon applied to the Charge d^ Affaires for Her Most Gracious Majesty at Washington, to make to the United States Government the request which de- ponent had been authorized to make, or to request officially the ill J. G. K. HOUGHTON 180 honor of an interview with the Honorable Mr. Seward for deponent, or to accompany deponent to the department of State to endeavor to aid deponent in procuring an niterview with Mr, Seward, — all of which requests were refused. That thereupon deponent wrote a letter to the Honorable Mr. Seward, a copy of which is herewith produced, marked D, and awaited a reply thereto, in conformity with its contents, but that no reply thereto was sent to deponent ; and that deponent was conse(|uently compelled to leave Washington without having been able to effect the object for which he went there. And deponent hath signed. (Signed) Sworn before me at Montreal, this tenth day of February, one thou- sand eight hundred and sixty-five. (Signed) J. Smith. The following are the papers referred to in the foregoing affi- davit : A. Montreal, Jan. 25, 1865. Mr. J. G. K. Houghton : Dear Sir, — You will will please proceed to Washington for the purpose of seehig the President or other official, and, if pos- sible, obtain a pass permitting you to proceed to Richmond ; and, if, possible, you will please go on to Richmond, and take the necessary steps to procure the necessary evidence to our defence. (Signed) RENNET H. YOUNG, 1st Lieut. P. A. C. S. MARCUS SPURR, SQUIRE T. TEVIS, CM. SWA'Ca, W. H. HUTCi:INSON. (True copy — J. G. K. Houghton.) B. Ebbitt House, Washington, D.C., 30th Jan. 1865. Sir, — I have the honor most respectfully to enclose for your perusal the following documents : Ist. A letter from Messrs. Bennett H. Young, 1st Lieutenant P. A. C. S. ; Marcus Spurr, Squire T. Tevis, C. M. Swager, and Wm. H. Hutchinson, now prisoners in Montreal, held on an appli- cation for extradition by the United States, in the matter of the St. Albans raid. .'\ . ■ i Ill p 190 2nd. Stamped copy of an affidavit of Bonnott II. Youuf^ and Marcus Spun*, two of the above named prisoners, witii the order of the Jud^^e fj;rautin.:^ the dehiy of thirty days in the said affidavit applied for on bohalf of all ti\c al)Ove mentioned ])ris(mers. fird. St.im{)ed copy of an application hy the said prisoners to be remanded to the ^aol at Montreal imtil the tenth day of February next, in view of the above mentioned delay for the adduction of evidence having been granted. As your Excellency will jterceive, the affidavit enclosed is the basis of an application for a delay of thirty days in the investiga- tion of the charge against the said prisoners for the purpose of procuring evidence from liichmond, as stated in the affidavit, neces- sary and material for ther defence, and which they are unable to procure in Montreal or Canada. The letter referred to autliorizes mo to proceed to Washington, for the purpose of obtaining a pass to proceed to Richmond with that object. And the aim of this present application is to solicit from or through your Excellency such a pass or letter, or such recommen- dation to the President of the United States or such other officials as it may be necessary to apply to in this matter and with this end. I would respectfully refer your Excellency to the concluding portion of their affidavit, wlierein the prisoners depose that their sole and only reason for making this application is to place the whole truthfully before the Judge before whom the proceedings for extradition are pending ; and I feel ccmfident that in a matter like this, involving issues of life and death, and grave and momen- tous questions of international law ; one too in which the United States of America Avith their whole power are arrayed upon one side, and five simple soldiers, the senior of whom is but a subaltern officer, upon the other ; your excellency Avill not refuse, or advise the President or his Government to refuse, these prisoners an oppor- tunity for a full and complete exposition of the facts, or permit or advise that the law officers of a great nation should be permitted to seek a partial or ex parte judgment. I would also urge upon your Excellency the fact that, acting in their interest and under their instructions, I have made this appli- cation openly, and not sought in any way to evade the military or civil regulations of the United States. In tJie name of humanity, therefore, and relying upon the universal practice everywhere prevailing of permitting persons accused of a crime every facility for obtaining evidence necessary and material for their defence and relying also upon the generosity which actuates great nations in dealing even with their enemies, I hun".bly refer to the enclosed documents and make this appUca- 191 tion for a pass or pcrn..t to proceed to Riclimoiul, and for all the necessary documents, letters or recommendations necessary for the pvirpose of procurhig all the documentary evidence in this case on behalf of the above mentioned ])risoners, >vhose extradition in tiie matter of the St. Albans raid is now sought for : and I assure your Excellency that I will strictly and conscientiously observe such orders or regidations as may be given to me for my guidance while upon the route. I would also anxiously solicit the favor of an interview with your Excellency, and an immediate reply, as hours are now of moment. I liave the honor to be, Sir, your Excellency's most obedient servant. (Signed) J. G. K. HOUGHTON, Advocate, Attorney for the prisoners wliose extradition in tlie matter of the St. Albans raid is now demanded. To His Excellency W. II. Seward, Secretary of State, U. S. (Copy.) C. MEMORANDUM. or a- Dcpartmcnt of State, Washington, } Jan. 30, 1865. ) J. G. K. Houghton, Esq., advocate and attorney for the pri- soners whose extradition in the matter of the St. Albans murders and robberies has been demanded, is informed that the Government of the United States can hold no communication or correspondence with him upon that subject. The prisoners, if they submit them- selves to the authority of the United States, need no foreign media- tion. Su long as they remain under the protection of a foreign government, and a demand upon that government for their delivery to the United States is pending, communications concerning them can be received only from that foreign government through the customary channels of national intercourse. A copy of the papers submitted by Mr. Houghton have been taken, and the originals are herewith remitted to him, and he is expected to leave the United States without crossing the military lines, or attempting to enter the scene of insurrection, or to com- municate with the insurgents. (Signed) WILLIAM H. SEWARD. (Copy.) : -'fe. ji^ ^m 102 ■■II :k ' D. Room No. 3H, Ebbitt Ilouao, Washington, D. C, January 81, 1805. To the lion. W. If. Seward, Secretary of State, U.S. : Sill, — I have the honor to acknowledge the receipt of your com- munication marked " Memoran(Uun," and dated Departraentof State Washington, January .'50th, 18(55, informing me, amongst other things, that the ( Jovernment of tlio United States can hold no com- nuuiication with me upon the subject of the St. Albans' raid, and also that I am expected to leave the United States without crossing the military linos or attempting to enter the scene of insurrection, or to communicate with the insurgonts. I would, however, most respectfully submit for your Excellency's consideration, that this morning, at about the hour of ten o'clock, a.m., at an interview with His Excellency the President of the United States, the President, although refusing mo the pass or permit to proceed to Richmond, for which I have applied to your Excellency, and then did apply, referred mo to you, and gave mo a card of recommendation or order, addressed to the llonorable Secretary of State, of which the following is a copy : " Hon. Secretary of State : '• Please see this gentleman, who is the gentleman from Canada spoken of yesterday. " (Signed) A. LINCOLN. " January, 31st, 1865." Previously to receiving your memorandum,! presented this card to your Excellency's Secretary, to whom I was referred on the first occasion of my seeking an interview. That gentleman, however, declined to report it to yourself, or in any way to faciUtate an interview. I would respectfully, but firmly, again ask for an interview with your Excellency, and an opportunity of personally urging upon your favorable consideration my application for a pass to Richmond, for the purpose of procuring the necessary and material evidence required by my clients ; and I would venture to urge that if any technical or diplomatic obstacle ever did exist against my holding any communication with your Excellency or the Government of the United States, this recommendation or order signed by th« Chief Executive officer must certainly waive and annul it. I would also remark that the prisoners for whom I am acting are not now under the protection of a foreign government, technically speaking ; but that they are held by the Government of Canada, subject to the provisions of a treaty for the extradition of felons, and by that treaty their guilt must be established before an extradition i t- 103 !W with upon [imond, ddence if any lolding of the Chief ing arc Inically lanada, IS, and idition can be made, and that the proof of their culpabiHty and liabihty to extradition under tliat treaty, or tlieir freedom from its provisions, can only bo maintained by a full exposition of all the facts of the case, and that the object of my ajjplication for a pass is simply to enable them to prepare such an exposition. The case is a simple action at law. According to the spirit of that treaty then, and by law and justice, the United k^tates being the plaintiffs, and the pri- soners the defendants, the legal agents of the defendants should not be precluded by the plaintiffs from any o]>portunity of jnocuring documentary evidence necessary and material for their defence. I would also respectfully, but firndy, except to the commence- ment of your Excellency's memorandum, in which I am styled advocate and attorney for the prisoners whose extradition in the matter of the St. Albans murders and robberies is now demanded, and would remind your Excellency, that the acts with which they are charged cannot be officially termed murders and robberies, until they are so pronounced by the judicial tribunal before which they are now arraigned. On behalf of these prisoners, therefore, while thanking your Excellency for the assurance that if they submit themselves to the authority of the United States they need no foreign mediation, I renew my application for a pass to Richmond for the purpose of obtaining that evidence which is necessary and material for their defence ; and as hours arc now of consccpience, I shall assume that a failure to receive the necessary pass or documents by four o'clock p.m. to-morrow, is of itself a second distinct refusal to this my second written application to your Excellency for that purpose, and in that event shall forthwith leave Washington en route for Montreal. I have the honor to be, Sir, Your Excellency's most obedient servant, (Signed) J. G. K. HOUGHTON, A.dvocate, (Attorney for prisoners whose extradition in the matter of the St. Albans raid has been demanded). [Copy.] The Hon. Mr. Abbott then stated that on these affidavits it was submitted that the prisoners had done every thing in their power to carry out the object for which delay had been granted them, and that such delay should be extended for a further period of thirty days. Mr. Johnson, Q.C., rose to oppose the appUcation, contending that it was a mere question whether our laws were sufficient to give eSect to the treaty with a foreign power. If this application could be made now, it could be made a hundred times, and be as perfectly N .y ■.<■■■ I-'' I,/ ^v^'.l, ■•4; ■;! ic i' I' •m ■J. ■':''.!. ■J '!;:.'■ '■'■! Si •A «. 194 .-.i't'.. ■;i; ■ : effectual the hundredth time. The prisoners were resisting the ap- plication that tlie investigation should jjroceed, and complaining that his Honor did not enforce a jurisdiction he did not possess. The prisoners might oppose their trial for want of such evidence in their own country, but not here. It had been evident from the first that the production of the evidence would be denied. Mr. Seward said in effect : " We will not furnish you with evidence to elude trial, but you shall have it when you are placed on trial." And that was no doubt a correct view of the law with regard to the duty of the American government. 3Ir. Devlin followed, saying that when the application for delay was granted on the 10th of January, he had said that on the ex- piration of thirty days they would be prepared with another. If this application was granted, the ingenuity of the Counsel for the defence would, at the end of the thirty days, furnish them with another pretext. They had had since the lUth of October to pre- pare for defence. Could they, after this indulgence, insist on another appllication ? He understood that delay had been granted to the prisoners on the understanding that when the delay had ex- pired they should proceed with their defence, in accordance with the judgment of the Court on the 10th January. He trusted it would not be suspended on account of Mr. Houghton's being re- fused to be alloAved to proceed to Richmond. Was it the fault of the Court ? The want of documents from Richmond was immate- rial, as the prisoners were not going to be tried, but Avere only put upon a preliminary investigation. Even supposing the offence had been committed in this Province, the Court would not have granted the delays which it had already done with so much leniency towards the prisoners, who relied more on the ingenuity of their Counsel than the goodness of their cause. If the application Avas granted, many would come to the conclusion that the proceedings would never arrive at that stage when investigation would be permitted. In conclusion, he would say that if the Counsel for the defence managed to get another delay they would have done their part towards the abrogation of the extradition treaty ; and he asked his Honor to refuse the application. Mr. Bethime said, that since the time of the first application, the case of Burley had been decided by four Judges, adopting the view that questions, such as the prisoners desired to raise, could only be tried in the United States when they were put upon their trial. He apprehended his Honor did not pledge himself when he granted the first application for delay, to grant another if that failed. When the former application was made, there was some hope that the evidence might be obfained ; now, there was none. He then went on to review the efforts made by the prisoners on the uld beir he hat me ne. on 195 this behalf. A dh-ect application had been made to the U. S. Government, and refused, and the ports of the Confederacy were blockaded. If his Honor granted the application, the result would be a mere delay of thirty days. The U. S. Government had said in reality, When you put yourselves within our jurisdiction, you shall have the evidence you require. Could his Honor presume the prisoners would be unfairly dealt with V In the case of the Savannah, the prisoners had not been convicted, as no verdict was returned, because the jury were divided. In conclusion, he again urged that delay Avould be ineffectual, and should not be granted. The Hon. Mr. Abbott said, that the affidavit stated that the prisoners had reason to believe that some of those who had been sent might yet be successful in reaching Richmond, and asked additional time to send others. He then went on to refute the propositions of the learned gfntlemen who had preceded him, which he argued were threefold, namely, that the prisoners were not en- titled to any investigation as to their guilt ; that this being the fact, there ought to have been no delay ; and that further delay could be of no use, since the evidence required could not be procured. The Court, he said, ought to be put in possession of the whole facts of the case, before it could decide if the offence was one which came under the extradition treaty. The fact was not denied that the prisoners made an attack upon the town of St. Albans, and partially sacked and set it on fire ; but the additional facts which they desired to prove, namely, that they were Confeden-te soldiers, acting under a duly commissioned officer, authorized by their government, through its agents ; were denied. They contended they could show that they were foreigners quoad the people of the Federal States ; owing their allegiance to a nation at war with the Federal States ; — soldiers of that nation ; and acting under the orders of the constituted authorities of that nation. Sup- posing these facts to be proved, would they not conclusively show that there had been no offence within the meaning of the Ashburton Treaty, and therefore, that the Treaty and the statutes based upon it, did not apply to this case at all ? It was impossible to deny this ; and his learned friend would not contend they ought to be extradited, if the allegations they made were true. Mr. Bethune said that was a question the United States had a right to try, and that it could have no effect here. Hon. Mr. Abbott said, he certainly did not expect to hear his learned friend assume such a position. It would place the Judge in the position of a mere ministerial officer ; entirely deprive him of all judicial discretion ; and render the limitation of the right of demanding extradition, — which was effected by the precise descrip- tion of the crimes for which it might be demanded, — practically a •, I- II ■f.V ■ ' i-'.-, ['t- - 1 cm i' .■■. ■■i'.i ■1 ' • . .1 ■ -i. : ■ <■ , ■■»,.' r-t m m m I?: 1>-,S 196 /' S'P; ^1..^^:. •' l'\ dead letter. Every general in the Confederate armies, who took refuge here, could be extradited as a murderer. Such a doctrine, he ventured to say, was (yitirely unsustained either by principle or precedent, by the treaty itself, or by the mode in which it had been carried out. And if the statements of the prisoners were true and were proved, their extradition would be revolting to the sense of justice of the civilized world. The presumption of a fair trial was one which we were certainly bound to recognize, and did recognize in an eminent degree in the Courts of the United States, w^hen the passions of the people were not aroused ; but it was a mockery of the most cruel kind to talk of such a trial in the case of these men. They would be placed before a Court and jury personally hostile to them ; composed of enemies inflamed against them to an unprecedented degree by the virulence of the struggle between the two sections. The fair trial they would probably get would be such a trial as Lieut. Davis got, who was under sentence of death, merely for asking for evidence for them ; and the severity of his treatment for a minor oflfence, shewed what they might expect who had sacked and burned a Northern town. Or they would get such a trial as the crews of the privateers and men of Avar of the Confederate States got, who in the face of their recognition as lawful belligerents by the civilized world, and by the clearest principles of international law, were put upon their trial as pirates — and were so declared to be from the Bench. And though the crew of the Savannah had escaped conviction notwithstanding the Judge's charge, in consequence of a difference of opinion among the jury, others had actually been convicted as pirates. If the evidence required was material, the Judge had acted wisely and humanely in granting delay. And now that a further delay was asked, because the first had proved insufficient — those who resisted the application were those, who by their own acts had ren- dered further delay necessary. Why did the prisoners want delay ? Because they were refused by the prosecutors a pass for one mes- senger ; because the prosecutors had hanged or were about to hang another, and because their precautions were so carefully taken to prevent communication that the others had not been successful. Such an objection from them was a violation of the simplest rules of justice, and should receive no weight from a Court administer- ing justice by those rules. Mr. Lajlamme, Q.C., and Mr. Kerr followed on the same side. His Honor Judge Smith said, that in granting the former appli- cation for delay he had carefully abstained from giving an opinion as to the materiality of the evidence proposed to be offered ; and had not in any respect admitted any obligation to grant the delay that had been asked for, and had been awarded. No precedent or to ful. lies ;er- de. )li- lon Lnd fay or 197 argument could, therefore, be drawn from that, in favor of the pre- sent application. But the argument had taken such a turn that he now felt called upon to intimate, at least in general terms, what his views upon it were. He certainly could not admit that his func- tions were purely ministerial, and that upon certain affidavits or depositions being laid before him, he was bound to commit for extra- dition. He had the right, and it was his duty, to hear all that was to be said on both sides, and to judge whether reasonable cause existed for believing that one of the crimes specified in the Ashbur- ton treaty had been committed, and that the prisoners were the persons who had committed it. He referred to the familiar illus- tration he had before used of a person killing another and being charged with murder — if it was shewn that such a person had killed the deceased in self-defence, it would be impossible for him to order his extradition. So also in the case of a woman killing a man in defence of her chastity. He would not be satisfied with the evi- dence that she had taken life — if evidence was also produced to shew that the cause for which she did so, justified it ; or rather took away from the act the characteristic of the crime of murder. This was his opinion, and he could not feel himself justified in departing from it, whatever may have been the nature of any recent decision upon the subject. So it would be in the present case also, if by evidence placed before him the acts committed by the prisoners were withdrawn from the purview of ordinary munici- pal law, and shewn to be properly Hable to be judged by the prin- ciples of international law alone. The treaty of extradition was intended to meet cases of ordinary crime — of the nature specified in it, not offences committed against each other by belligerents, recognized by Great Britain as being engaged in warfare. This was the doctrine evidently held by all the English judges hi the Gerity case. The evidence of the act done in that case was con- clusive ; while the evidence of any belUgerent character in the assailants was of the feeblest character, consisting merely in a state- ment that they acted on behalf of the Confederate States, which, it was asserted, was equivalent to hoisting the Confederate flag ; and it was for that reason that the Judges declared that they could not say that the magistrate had not sufficient grounds for committing them. But if they had been prepared with proof of their authority — if they had produced their commission from the Confederate Gov- ernment ; it was plain from the language of the Judges that their conclusion upon that point would have been different. But the affidavits produced do not state with precision what was the exact nature of the evidence to be adduced ; and he was, therefore, unable to judge whether or no that evidence, if obtained, would be material to the issue. As to the other branch of the argument, it should be kS^; I i| J. I'WWI M P W^ j u 198 it; li M!!; i.M remembered that the United States were unhappily engaged in a war of gigantic proportions, and that it appeared to be a part of the policy of that war to beleaguer the capital city of the Confederate States as closely as possible. It was probably impossible to relax this state of things, and in any case it was a matter over which he could exercise no control, and which could not affect his decision. If he held that the action of the federal Government in pre- venting access to Richmond should entitle the prisoners to further delay — he should virtually hold that the investigation could not be proceeded with till the war temiinated. He must, therefore, refuse the application for further delay. It was then agreed that the examination of the witnesses should be proceeded with on the following morning at half-past ten. And the Court adjourned. EVIDENCE FOR THE DEFENCE. 11th February, 1865. John G. K. Ilougliton, of Montreal, Advocate. — On the twenty- fifth of January last, I was engaged to proceed to Washington to get a pass to go to Richmond, to obtain the documents necessary for the prisoners. Mr. Bethune objected to this as irregular and irrelevant. Ob- jection overruled. I arrived in Washington on Saturday morning, and imme- diately attempted to obtain an interview with the President, but did not succeed until the thirty-first of January, when I had an interview with the President, and asked for a pass to go to Richmond for the necessary evidence for the St. Albans raid. The President refused to give me a pass. I used every effort to induce the President to give me this pass ; he said " No, I will not ; these men are rebels, they go cutting and slashing around, and I do not see that it is any part of my business to help them ;" these are the exact words. I again urged my request upon the President, and finding that I was unable to succeed, I asked for a pass to go to General Grant's head quarters, and from thence to forward a mes- senger to Richmond to procure evidence ; the President refused. I endeavored to influence him again, when he said " You can see the Secretary of State," and distinctly refused to give it himself. I had some correspondence with the Secretary of State, the Honorable Mr. Seward. The purport of this correspondence is correctly shown "by the papers produced with my affidavit yesterday. The evidence I was to obtain was documentary. The principal instrument of evidence I was to obtain, was the copy of any general order of the Government of the Confederate States recognizing what is known as the St. Albans raid, that is the acts of these prisioners. Cross-examined under reserve. — I was employed by the prisoners f ..;f.. les- led. the lad ble Iwn ice of he (vn n-3 100 through their agents, by a letter which I fylecl with my affidavit yesterday. I have not personally had any conversation with the prisoners. I was never informed by the prisoners, through their agents, or by any one, that Presirient Davis had refused to recog- nize the St. Albans raid, and further, I say not, and have signed. (Signed) J. G. K. HOUGHTON. William W. Clean/, of Richmond. — I am an Attorney and Counsellor-at-Law. I have occupied myself lately in endeavouring to procure the passage of a messenger to Richmond on behalf of the prisoners. One Lieut. Samuel B. Davis was dispatched on the 10th of January last from Toronto ; he carried through a written paper to the Confederate government, asking that the authority for the St. Albans raid should be sent to Montreal before the tenth of this month ; the precise document required was any general order that might have issued authorizing the St. Albans raid. On the 14th of January last, another gentleman was sent, carrying the same request, and the same paper. On the 15th, a third messen- ger was sent for that purpose ; and on the 22nd or 23rd January last, we heard that said liieutcnant Davis had been captured, and thereupon another messeiger was dispatched to Richmond for the same purpose. No intelligence has been received of any of them having succeeded in reaching Richmond, or as to their fate, except Davis. Davis had previously passed safely through the Federal lines. Cross-examined under reserve of objections. Question. — What are the names and places of abode and occu- pation of the three messengers other than the said Davis, whom you assert were dispatched to Richmond ? Objected by 3Ir. Abbott on the grounds — 1st, that an answer would defeat the object of their being sent ; 2nd, would imperil their lives; 3rd, that their names and abode were immaterial Objections maintained. The witness was then ordered to stand down for the present. William L. T. Price. — For the last two years I have been a soldier in the Confederate service. At the time I was captured, I belonged to General Morgan's command. I know Rennet II. Young, one of the prisoners. I have known him as far back as my memory extends. He is a native of Jessamine county. State of Kentucky, of which I am also a native. I did not belong to the same command as Young ; but I met him in the service. He was a soldier in the Confederate army. He belonged at that time to Morgan's command. The date of my meeting with him was pre- vious to my joining that command. I was one of the soldiers under General Morgan during his last raid in Kentucky. The advanced .■'*■■ ■.' ■ m m '<;[ii'' ■■:■',< ■ .:■■■ ;i '■' • "'■'ll \4 ' i- mi ii vtj m 01 1 , ■ ^ ■■■' ■■ • ■ i I r ll 1 . •&• 'yd ■ ■,'iiij I •■ i WMmUM gwgg -r' '■.*■; M ♦ x . 20G within the onomy's lines. I have myself freiniently done .so, acting as Adjutant-General. Captain Collins, who was a i)risoncr hero in Deccmher, was once sent out by me on special service ; and com- manded a i)ai*ty of twenty-three men. These secret expeditions were always sent into the enemy's lines ; sometimes to capture prisoners, burn bridges, for scouting ])urposes, to destroy communications, and telegraphs ; and on one occasion I sent an expedition to l)\irn a town, under Ceneral Morgan's orders ; there was about fifty men. These expeditions were intended to harass the enemy in every possible way. Sometime in 1HG2, orders were issued from the Secretary of War and Adjutant General, to form small parties of men as partizan Rangers. 1 know a number of these men and of companies of partizan Uangers which were in operation ; these com- panies arc not attached to the regular army ; each company is under its own officer these officers are seldom above the rank of Captain. From the commission and paper N shewn me, 1 sho\dd consider Young and his party to be a party of this description on special ser- vice. Parties sent into the enemy's lines on special service never wear any uniform. Being shewn and having examined the paper writing now produced, and marked 0, I recognize the signature thereto as the signature of said Mr. Seddon, Secretary of War. I have no doubt about it ; it is genuine. I know the Honorable C. C. Clay, the gentleman mentioned in paper 0. I knew him when he was Senator for Alabama in the Confederate States Senate. I do not know what i)08ition he held liere last autunni. I saw him here PAPER 0. ( Confederate States of America, War Department, Richmond, Va., June IGth, 1804. To Lieut. Bennett II. Young ; Lieut., — You have been appointed temporarily first Lieut, in the Pro- visional Army for special service. You will proceed without delay by the route already/ indicated to you, and report to C. C. Clay, jun., for orders. You Avill collect together such Confederate soldiers who have escaped from the enemy, not exceeding twenty in number, that you may deem suitable for that purpose, and execute such enterprises as may be indicated to you. You will take care to organize within the territory of the enemy, to violate none of the neutrality laws, and obey implicitly his instructions. You and your men will receive transportation and customary rations, and clothing or commutation therefor. JAMES A. SEDDON, Sec. of War. iber, such be to kthe and I, and 'ar. 207 about two months a^o. I am aware tliat there is a state of war existin;^ between the Northern States and the b^outhern, and has been since 1801. We iuive in the Soutli a President, Senate, and House of Representatives, sittin;; at Ilichniond, and have a re^idarly organized government aiifl army iVoi', the liighest to the lowest grades. I know tliat in Jmn- last, Mr. James A. Seddon was Secretary of War for the Richmond Government, and Mr. Davis the President. I am wuU acquainted with the mode in which the war has been carried on by the Federal troops agatiist the South. Question. — Are you aware whether or no ])etty warfare and a series of petty depredations were systematically carried on by the Northern soldiers in Southern territory, in which private i)roi)erty was constantly taken or destroyed ? Objected to as illegal, irrelevant, and foreign to the issues in this cause. Objection maintained. Question. — Can you state any particular instances in which parties of Northern soldiers have entered the Southern lines in dis- guise, and taken or destroyed private property? Objected to. Objection maintained. Question. — Is it not the fact, that during last summer an im- mense extent of Southern territory was wholly devastated by Northern troops, and private property to an immense value appro- priated by them or wantonly destroyed V Objected to. Objection maintained. I do not know Mr. Clay's handwriting. The Counsel of the United States object to the whole of this testimony as irrelevant and illegal, and consequently decline to crocsfe-examinc. (Signed) C. A. WITHERS. William II. Carroll : — I was formerly an officer in the Confeder- ate army, holding the rank of Brigadier General. I commanded a brigade, at one time. Mr. James A. Scddon was Secretary of War for the States in June last. I am accjuuinted with him, and have seen him write and sign his name. I know his signature when I see it. Being shewn, and having examined the documents M, N and 0, I should say that the signatures to those documents are the genuine signatures of James A. Seddon. I might be imposed upon by his signature, but I have not the slightest doubt that they are the genuine signatures of the said James A. Seddon. I have frequently seen such papers before. The paper M is the usual and customary form of commission to an officer ; it is the same as the one I received myself as Brigadier-General. An oath accompanies it, which is returned by the officer. The officer acts under the paper, and remains an officer until the Senate rejects such appointment. I believe the Senate is v. •>> '*' A ■'. ! }^U-. ■^M :-■!<■ -'11: ;' I ■i'- .1 ■ ■' !J ■ i '*■ v4 '■ V> • ' , < ■ I. V W B libfc 208 !'(, IS';'" i»i mim urr m ill now sitting at its first session since the date of that paper. I hare seen all the said papers before marked M, N and ; it was some two or three days after the St. Albans raid. The man who shewed them to me, said they came from Toronto ; they were shown to me to see if they were genuine, v.rxd to say what should be done with them, and I directed them to be sent to Mr. Abbott, one of the Counsel for the prisoners, and I believe it was done. The prisoners were at St. Johns or in that neighborhood when the said papers were shewn to me. I do not know whether Mr. Abbott had been to St. Johns previous to the time the papers were shewn to me or not. CrosH- c.ramination under reserve of objections. — I do not know in -whose handwriting the body of the papers M, N and 0, are filled up. The only writing I recognize on the papers is the signa- tures ; it is usual for clerks to fill up the commissions. I do not know who had possession of those papers in Toronto, nor do I know who sent them to Montreal. They were brought from Toronto to Mon- treal by a person named Hiams ; I have only seen him once since he brought the said paper.s. These papers were shewn to me in the presence of two })ersuhj, one named Moore, and the other named McChesney. I do not know his Christian name ; he is now in Court, and was residing in Montreal at that time. I did not send for the papers. I was told by some person that they were sent for by Lieut. Young ; this was some days after the raid. I know all the prisoners since the raid ; I knew one before, that is Lieut. Young ; I met him in Canada on his way to the Confederate States last fall a year ago. In the fall or winter of 1863, I met him in Montreal ; I think he stopped at the St. Lawrence Hall or the Donegana ; I met him once or twice, I cannot say how long he remained in the city. I saw him in Toronto once sometime last summer, I think in July or August. I presumed he had returned from the Confederate States. I am not certain that he went there. I met him at the Queen's Hotel Toronto ; this Avas the firsi: time I met him in Upper Canada ; I did not meet him there afterwards. I did not meet any of the other prisoners. I did not see any of the prisoners immediately before the raid at Montreal ; and further saith not, &c. W. H. CARROLL. Montrose A. Fallen. — I am a native of Mississippi, I have been a Surgeon in the Confederate army ; at that time was medical director of a Corps d'Armde. I knew two of the prisoners before I saw them in Montreal, — Mr. Swager, and Mr. Huntley, who answers to the name of Hutchinson. I knew them in the Confederate army ; they were soldiers in Mississippi. I know Mr. James A. Seddon, who was Secretary of War last June. I know his hand-writing and signature. Being shewn and having examined the papers marked een a ector them ) the they who and rked 209 M, N and 0, I declare that the signatuie James A. Seddon, Secretary of War, is genuine. I have carefully examined the said three documents, and the documents are genuin'\ I have seen similar documents to papers N and 0, which are called detail^. I have frequently seen similar documents to paper M ; it is the regular commission, the same as mine, and I have always seen the same kind in the Confederate States, except one, which was General Frost'^. In that commission the pen was drawn through the words respecting the sanction of the Senate. Being shewn and having examined the paper writing marked P, I helieve the sigp-it\u-e thereto to be the signature of C. C. Clay. I am ac(iuainted with. his hand-writing"and signature ; his first name is Clement ; I l)elievo he was Senator for Alabama. I know that Mr. (Jlay was in this country. I never saw his papers, but I know that he was a Com- missioner of the Confederate States of America. (Jross-exaynined under reserve. — My attention being particularly called to the figures and dates, that is to the words October (3, ISiH, and being asked if the paper on which these words are written presents any appearance to induce me to believe that it was tampered with. I answer that I am not in the habit of handling papers that are suspected of being forged. I do not know where Mr. Clay was on the 6th October last. Question. — Whose hand- writing is the body of the pa}!er writ- ing P ? Ansiver. — So far as I am ac([uainted with Mr. Clay's letters and figures, these look very much like his. QuestiGn. — Will you swear that the "word October, or so much of it aa is written on said paper, also the figure G, and the figures 1864, contained in the said papr^r are in the hand-writing of the Hon. C. C. Clay, Jun. n f ■pAPER P. Mem. for lieut. Bennett Young, C. S. A. Your report of yor ^ doings, under yo\ir instructions of 16th June last from the Secre^^ry of War, covering the list of twenty Con- tederate soldiers v /(jo are escaped prisoners, collected and eni'olled by you under th jsc instructions, is received. Your suggc ^jtions for a raid upon accessible towns in Vermont, commencing ^ ^Ith St. Albans, is approved, and you are authorised and require ",( to act in conformity with that suggestion. October 6, 1864. C. C. CLAY, JUN., Commissioner, 0. S. A. !:•■•'. ■,>r'i '■•', f'r. r'^Tlf--^ 210 'I'- Answer. — I did not see him write it, and consequently cannot swear that he wrote it. I did not see him write his name to the said document. It' I were a cashier in a bank in which ISIr. Clay had a deposit, and a check was presented to me with that signa- ture, I would pay it. I think this is the first time I ever saw the said paper. I have not seen Mr. Clay for two months. He was here either in October or November last ; and further saith not. MONTROSE A. FALLEN. fi]t''' , ■'ii- W-i William W. Clearrj, being recalled, said : During last summer, and for more than a year previous, Mr. James A. Seddon was Secretary of War for the Confederate Gov- ernment. I was employed in an official position at Richmond pre- vious to coming here. I was an employ (3 in the Treasury Depart- ment, but the duties I performed were connected with the war office. I have seen said Mr. Seddon's signature over a thousand times, and know it well. I have seen him write and sign his name frequently. Being shewn and having examined the papers fyled in this case marked M, N & 0, from my knowledge of Mr. Seddon's signature, I have no doubt but that the signatures are genuine. I have seen the commission, the paper M before now; to the best of my recollection it was in the latter part of July last. The prisoner Young then exhibited it to me. He stated to me that he had other instructions in addition to the commission. This was at Toronto. I do not know where he was going then. I am not sure tliat Young told me he was going over to St. Catherines to see Mr. Clay ; all this took place in the latter part of July last or the beginning of August. 1 know Mr. Clay ; his name is Clement C. Clay, jun. ; he was an officer of the Confederate Government, and was appointed by the Government a commissioner abroad, and that was his position in this country ; I am personally aware of this fact. The last I heard from Mr. Clay was that he was en route for the Confederacy. I have since heard of him, from Halifax. I think it was in December last, that he left Canada. I know his handwrit- ing and signature very well. Being shewn and having examhied the paper writing marked B, I believe that the whole of it, the body and signature both, are in the handwriting of said Clement C. Clay. I have no doubt of it at all. His handwriting is peculiar and very characteristic, and I could not very well mistake it. I saw that paper for the first time about a month ago. I was previously aware that Mr. Clay had sanctioned the St. Albans raid. I became aware a short time after the raid occurred that he had authorized it. I know this from himself. It was in consequence of my knowledge that he had authorized the raid that I asked to see paper P. The information are was not see the itC. and that fact, the nk it writ- incd body 'lay. very taper Mr. bhort thia had ition 211 I got from Mr. Clay, was that the authority he had given was in writing. He said the paper was in Montreal, and to the best of ray knowledge he said it was in the possession of Mr. Abbott. I was aware before the raid that Mr. Young had projected some expedition ; but of this raid I knew nothing ; I knew that he was in communication with Mr. Clay about some expedition. After the raid I understood from Mr. Clay himself that he had advanced from the Confederate funds sums of money for the defence of the prisoners. I understood from Mr. Clay that the parties not arrested had turned over to him, as Confederate Commissioner, the money captured at St. Albans. I do not know anything about the money that was before the Court. I have seen a great many commissions like paper M ; that paper is in the usual form of commissions, when the Senate is not in Session. It is not usual to append any seal to documents of that sort. The Senate v>-as not in session at the time that paper was issued, but is now in session. I believe, accord- ing to the Constitution and laws of the Confederate States, that the Secretary of "War is the proper ])erson to execute and issue such a commission and such orders as papers M, N and 0. Lieut. Young would have been liable to be tried by court martial if he had disobeyed ihe directions contained in those papers. Cross-examined^ under reserve of objections : 1 believe Mr. Clay came here in the month of Juno last as Com- missioner. I do not know where he stopped in Montreal. He was in Upper Canada; his principal place of residence was at St. Cathe- rines. I saw him frequently at the Clifton House, also at St. Cath- erines. In October last he was residing at St. Catherines. I saw him there hi the months of August and September last. He remained in Canada from June to December, and I understood his place of residence was St. Catherines. I do not want it to be said that I said he remained in Canada all the time. I think he left Quebec in the middle of December. I have been informed he left Halifax in the month of January last. I have known the prisoner Bennett II. Young since last July, when I made his acquaintance at Toronto, in Upper Canada. I met him afterwards in Toronto, in the months of August and September. I met him at the Queen's Hotel, where I met him in September, about the first week thereof; he was on his road to St. Catherines, to visit, as I suppose, the Honorable Mr. Clay. I did not see him afterwards. In August last, I met the prisoner Hutchinson, or Huntley, at the Queen's Hotel. I do not know that he went by any other name than that of Huntley. Mr. Y'^oung was there at the same time. I saw them in company together. I do not recollect meeting any other of the prisoners. I recollect also having been introduced to Captain Col- lins, who was one of the persons arrested for the St. Albans raid, rf A '..tv m ■sj; M ■■j't,t !•! ■-'it MM ig 212 ' »,■'■■ .} i- kjj w and who Avas discharged by Mr. Coursol. I met liim in August last in Toronto. I have seen some of the otlier persons who wore jirisoners, and dischai'ged by Mr. Conrsol, in Upper Canada in the month of iVugust hast. 1'he said Mr. Chay wns both a civil and a military officer. He made his reports to the State Department, which was the civil department of the State, but he had araj^le powers, both civil and military ; but he had no rank in the army. lie was not a commissioned officer in the arm 7. (Signe.l), ^\yl. W. CLEARY. James Watnoji Wallace, of Virginia, on his oath saith :-r-I am a native of Virginia, one of the Confederate States. I resided in Jefferson in the said State. I left that State in October. I know James A. Seddon was Secretary of War last year. Being shown and having examined the papers M, N and 0, I say that from my knowledge of his handwriting, the signatures to said papers are the genuine signatures of the said James A. Seddon. I have seen liim upon several occasions write and sign his name. He has signed documents and afterwards handed them to me in my pre- sence. I never was in the Confederate army. I was commissioned as major to raise a battalion. I have seen a number of the com- missions issued by the Confederate Government, and the commission of Lieutenant Young marked "M" is in the usual form of all commissions issued in the army, which are always signed by the Secretary of War. I never served ; I was hicapacitated by an accident, and being tlieu kidnapped by the Northerners. I was in Richmond in September last. I then visited the War Department. It was then notorious that the Avar was to be carried into New England in the same way that thg Northerners had done in Virginia. When I was in Virginia I lived in my own house until I was burned out, and my family were turned out by the Northern soldiers. The Counsel for the United States object to the whole of this evidence as illegal, irrelevant and foreign to the issue, and con- sequently decline to cross-examine. (Signed) J. WATSON WALLACE. George N. Sanders. — Being shown and having examined the paper writings marked M, N and 0, I believe I have seen similar papers before or of a similar purport, and Avhich I believe to be the same substance as these, the day of the St. Albans raid. I merely looked at the papers at that time to see their general pur- port, and to have them delivered to the Counsel for the defence of the prisoners. I directed them to be remitted to the prisoner's Counsel ; they came from Toronto, I believe, on the application of ^ .1 eon- Ithe ien 3ve lid. |ur- of ir's of 213 Young after his arrest. I know Mr. C. C. Clay, whodo name iti subscribed to document P. He was then e.\ercisin;••:' :>, ■, »!, '!.."■ (■ U :;;]■ i, y'r ■ ;' ;»^ .■':• > ;nh -immtm fi.5 ^i% ■ •■ ■ r,V' • .' 4- :!•■■; ji,|''- ' 1- lip •'■<.■ >! y-f a^ '. Itm 216 William M. Cleary is ro-callcd as a witnt'ss : — I reco;j;nizo i\w. seal appended to the certificate si;:;ned J. P. Benjamin, Secretaiy of State, as being the great seal of the Confederate States of Annerica. I do not remember having seen the seal of the War Office before. I have in my possession the original of tlie paper first annexed to the said certificate, being instructions to Lieut. Young to report to Messrs. Thomfison and Clay, which I now pro- duce, and which is idoitified by the letter R. The reason why I did not j[)'oduce this pa[)er or the other papers, N and 0, at an earlier stage of the trial, that is, when delay was first asked to send to Richmond, was that after a consultation I had with the Counsel for tlie defence, it was decided not to produce them until an oppor- tunity had been afforded for getting papers from Richmond, because it was feared that the production of tliose papers might involve Mr. Clay in a charge of a breach of tlie laws of neutrality. I caimot state that it is the general rule of the W;ir Office to issue more than one letter of itistruction to the same persons at the same time. I have known of its being done, luit it is rather the excej)tion. It has been done in cases when the duty was to be performed outside of the Confederate lines, from whence there might be difficulty in C'mimunicatini' with the Government in tlie event of anv unforeseen occurrence, so that the intent of the sending of the party might not be defeated; and the object is to enable the party sent to ol>tain his orders in different ways. I know of a fact which would account for PAPER R. Confederate States of America, War Department. Richmond, Va., June IGth, 18(J4. To Lieut. Bennett 1L Young, Lieut. — You have been appointed temporarily 1st Lieut, in the Provisional Army for special service. You will proceed without delay to the British Provinces, where you will report to Messrs. Thompson and Clay for instructions. You Avill, under their direction, collect together such Confederate soldiers who have escaped from the enemy, not exceeding twenty in number, as you may deem suitable for the purpose, and will execute such enterprises as may be entrusted to yon. You will take care to connnit no violation of the local law, and to obey implicitly their instructions. You and your men will receive from these gentle- men, trans[)ortation, and the customary rations and clothing, or commutation therefoi'. JAMES A. SEDDON, Sec. of War. Va., June ItJth. 217 3re lr. 'I' Bennett H. Youn;j; bcin;; referred to Mr. Clay as well as to Messrs. Thomjison and Clay, namely, because he was a particular t'avorito of Mr. Clay, a)id was a]»pointed to a conniiission on 1'' ■•ccommeji- dation. 1 know that he was appointed for service within the enemy's lines, that is within the Northern States. I know that Mr. Clay recommended him for that commission for this purpose. Qiantion. — Are you or are vou not aware that Lieut. Younth of August and the 9th of Septem- ber last. 1 heard conversations between them about the attack on St. Albans, which was subsccpiently made on the 10th of October. The purport of these conversations was that Young was to burn the town if ])ossible, and sack the banks. I am aware that Mr. Clay furnished Young with money to cover his expenses at the said raid. Mr. Clay sent me a cheque for 'i'400 or upwards for Mr. Young, towards the expenses of the said exfjcdition. I gave him the said cheipie, and he got the money on it in Montreal ; tliis was about two weeks before the raid. 1 had no personal knowledge that he got the money, but I j.resumc he did, as there were funds there to meet it. Cross-examined under reserve of objection. The conversations above referred to between Bennett IL Youns; and Mr. Clay all took place in Mr. Clay's private residence, in the town of St. Catherines, in tapper Canada. This cheijue that 1 referred to was drawn on the Ontario bank. I believe it came to me in a letter, and my impression is that it came from Quebec. It is my impression that the cheipie was drawn on the Ontario bank here. I was not present when it was presented. I think that cheque was signed by Mr. Clay. It was signed simply " C. C. Clay, Jr.," and the cheque was payable to the order of Bennett H. Young. I believe I saw the said Bennett H. Young in Montreal, about three days Ijefore the raid, which took place on the 19th of October last. I also saw the said Marcus Spurr in Montreal aboiit four days before the said raid. I did not see any of the other said prisoners at any time near the period of the raid ; and "•XT' w f '■■4 A V - !;. •ii-ii' ip; 'f-:\ U 1- . • lS-' m ■ A m w I; '3K ■'i ^■hfi' ■■';.i': .», ' r. "v'.. 218 the nearest time to that date tliat I saw any of them was in July last ; I then sav the said Charles M. Swa;j;er at Windsor in Canada West. I did not know any of the other | prisoners now here hefore the said raid, i i-ecolloct nieetink\ A,. ■■ ;v. I . vv'li' « ■ 1. .■ m 'H'- '.!■'>' 'Sii II' •;*■ ■ i ' 1 I » ■ nn 'If- iUH'l 11 # till 'ii f if Ifu > 1 ifr r 220 Ycnnonl. In tlie course of conversation he oiKiuirefl tl\c rclatiyo (listanoe.s of Fi'eligh«l)ur{j;h and Philipsburgh from St. All>an.s. The (.'oiuisel f(»r the defence decline to cross-examine NELSON MUTT. Ilohri/ Allan. I rocogjiizo Marcus Spurr, one of tlie prirtuncra ; I made his ac(|uaintance i)i Toronto hist winter, in the hitter part of January, 18Gi. He had no business that I know of; he wjw there for two or three months after that. I saw him hero in Montreal, last October, before the raid at St. Albans ; he was 8tayin<^ at the St. Lawrence Hall. I saw him in Montreal two or three days before the raid at St. Albans. The Counsel for the defence decline to cross-examine. HENRY ALLAN. James L. Ilocjle. — I formerly rcVided at St. Johns, Canada East : I kept an hotel there in the month of October last. 1 recognize two of the })risoners now in Court, viz : Bennett IL ^'oun^ and William H. Hutchinson. They put \\\) at my hotel at St. Johns. They arrived with four others, and all put up at my hotel. They arrived on the lltli day of October last, and re;^istered their names in the re;j;ister which I there kept, and which 1 now have in Court. The [irisoner Hutchinson registered his name as Jones, I think J. A. Jones. They arrived in a body, and throe of them left on the Saturday of the same week, as I left home. I cannot say when the other three left. Upon looking at the register, the entry so made by the said Hutchinson is W. P. Jones, Troy, N. Y. The Counsel for the defence declhio to cross-examine. J. L. HOGLE. Thursday, Feb. IG, 1805. Mr. Bethane said the prosecution expected more witnesses, but these not being present, ho argued that tlie prosecution had fully proved a case of robbery against Spurr and Teavis on the person of one Brock ; and that he apprehended all the prisoners were equally guilty, as all started with the purpose of plundering the banks. The evidence showed all wore in town on that day, as proved by Bettesworth, and after the robbery loft the town and fled together into Canada. He then proceeded to (juote Hawkin's Pleas of the Crown, chap. o4, sec. 4, p. 148 ; Halo, vol. 1, p. 534 ; 1st Bishop, sec. 267 ; also 2nd Bishop, for robbery, quoting Hawkins. He contended that the prisoners had all arrived at St. Albans with the intention of j)lundor. They all camo there for the purpose of plundering the banks ; and as an incident to the k J. the the ade but fully Vson rcrc the as land liii's tmg at for I the '>-2i plunder of one of them, they had also plundered the eo!ri|iliii!i:int ; and they all left there together. As they had ansenihhNl there with intent to comniit one felony, they were all alike "guilty, if any of the party, 80 aHseiuMed, had eouitnitted another in the eourse of the proRoeution of the one whieh they intended to eitiiiiiiit. lie cite(i, as an illustration of the doetniie,.an instajicM? in whieh parties were prosoeuted for a breach of the peace with intent to resist the fyolice, in vhieh the (.'onrt held all C([ually guilty of the nmrder of a [)erson accidentally killed, thou_:;h some of the party were distant and even out of view. With these authorities, he siihniitted the prosec\ition were entitled to a warrant of conunitnieiit for extra- dition against the prisoners. They (the prosecution ) intended to await the arguments of their learned frieiuls on Monday ; and if, in reply, the prosecution ipioted any authorities, it would ho the privile<;e of the defence to answer them. It would also he the privilege of the Crown prosecutor to sum up the whole case after- wards. Hon. Mr. Abbott said it was to be regretted that the prosecution had not told thein the groiuids they intended to take. Mr. Bdlvme said that the ground would be that the ])ris(>iu'rs had committed robbery. Hon. Mr. Abbott continued that the disadvantage would '^ , that they would have to argue and fortify every point of law and »f fact, not knowing what Avas disputed or what denied by the pros^'cution. This would greatly lengthen the arguments for the defence which might otherwise have been confined to the real points in issue. The case of the prosecution would only bo developed in their reply, and this again would be vnijust to the prisoners. His Honor said that if necessary he would hear the counsel for the defence again. Mr. Bethune did not care how often they spoke. The case to be maintained was one of robbery. Mr. Johnson said there was no particular form of j)rocedure in such cases. Hon. Mr. Abbott said that Mr. Bethune had proposed that' Mr. Johnson should sum up, but he denied that the Crown prosecutor had any such right. The real prosecutor was the United States, and after they were heard, the case ought to be left to his Honor. Mr. Johnson said that with respect to the office of Crown i)rose- cutor, that might be safely left to him. His Honor thought that the Crown officer was entitled to reply. The case was a Crown case, in so far as it was the duty of the Crown officer to rectify anything wrong ; but that whatever Mr. Abbott had to say he would hear him. The enquiry was then aujOiiined till Monday at 10.80. ■ «>' '. > ; '1. .•i •)•■.'', ^? 1'^ '■!'\ * jr»'.j 'f f ; \.-\ i^K •mm j ^' j ^f um^ m^^ frnm 2-2'2 tl'i"' . 'Sn Mr. Kerr for tlic defence, handed to the Jud^^e and counsel a printed paper containing the following propositions and authorities : 1. That Bennett II. Young was on the nineteenth of October last, a commissioned officer in the service of the Confederate States in command of a party of enrolled Confederate States troops, then in the territory of the^ United States ; a country with which the Confederate States were at war, quoad which contest Iler Majesty had declared her determination to maintain a strict and imjnirtial neutrality between the contending parties. 2. That the said Beimett 11. Young was ordered and directed by his Superior Officer, to whom he had been referred for Instructions by the Government of the Confederate States, to make the raid upon St. Albans, now under investigation. — The Hon. C. C, Clay's letter 6 Oct., 1864. o. That the tenth article of the Ashburton Treaty is strictly limited in its operation to the crimes recognized by the common law of both countries under the names thereto applied in the treaty. And that the whole of the facts and circumstances of the case must be examined into and weighed by the judge, in order that he may be satisfied that the act of the accused can be justly designated as one of the crimes mentioned in the treaty. — Robbins alias Nash's case. Wharton. Expte BoUman k Swartout Marshall on the Constitution, pp. 33 to 41. The People v. Martin & al., 7. N. Y. L. Observer pp. 52 to 56. 4 Op. Attys. Gen., p. 202. 4. That acts of hostility committed by the troops of the Confede- rate States, a recognized belligerent within the territory of the Federal States, the other belhgerent, and political offences arising out of popular commotions, insurrections, or civil war do not come within the provisions of the treaty. — Presdt. Tyler's message. Wheaton, Lawrence's edition, pp. 236, 24 in yiotis. 5. That the United States no longer exist. That since the rati- fication of the treaty of 1842, five or six States have been admitted into, and nine or ten States haV^e seceded from the Union — that between two portions of the former republic, civil war has been and is now raging — and that thereby the sovereignty, which subsisted only in the Union, was immediately upon the commence- ment of the war dissolved. — 2 Burlamaqui, pt. 4, cap. 7, §38, p. 210. 6. That the war now raging between the Federal States and the Confederate States is what is called a perfect war. That both parties are belligerents, and entitled to all belligerent rights given by war to sovereign governments. — Wheaton, 40, 523, 524, 520 in notis, 1, 2, 847, 850 in notls. The Tropic Wind, Monthly L. Reporter 1861, p. 151. 7. That during a war between two nations or governments, the M 'M ide- the ati- tted that )een ^lich ice- >10. the )oth I veil )20 ithe municipal criiiiinal codes of the beUigerents are sik'ut and inopera- tive quoad acts committed by tlie troops of cither oi" the belligerents within the territories of the other. The law of nations alone furnishing the ruicc for the government of armies or detached bodies of troops on hostile territory. — o Burlamaciui, pt. 4, cap. 5, § 8, 12, 13, 14, 15, IG. 2 Azuni, pp. 04, 18. 2 llutherforth, B. 2, cap. 9, § 15, pp. 540, 546, (i 551. 8. That under the law of nations, in what is called a perfect war, the rule is that the person of the enemy is liable to seizure, and his property to cnfiscatiou, seizure, or capture, Avherever found. — 3 Phillimore pp. 115, 116, 120, v'n iiotis (132,8 & 9 note q.) Lawrence's Wheaton, pp. 518, 519, 596. Lee on Captures, p. 141. Bynkershoek, chap. 4, p. 27. 3 Rutherforth, p. 549, Bas i\ Tingy, 4 Wheaton Rep. p. 40. Miller v. The Resolu- tion, 2 Dallas, R. 21. 9. That, under the law of nations, members of one belligerent nation may lawfully kill members of the other belligerent nation, or seize or capture their property wherever found, except in neutral territory. Lawrence's Wheaton, p. 518. 2 Rutherforth § 18, p. 578, ^ 19, p. 594. 3 Phillimore, p. 137. Burlama(iui, p. 195, 201. Jecker v. Montgomery, 18 Howard, 114. 10. That the commission of nn officer in the army of a bellige- rent power, authorizes him and the men under his command to engage in every act of hostility against the other belligerent, per- missible under the law of nations. — 1 Kent's Com. pp. 94 & 96. Halleck, p. 386. Lawrence's Wheaton, pp. 626, 627. Lieber's Instructions, No. 57. 1 Opin. of Attys. Gen. pp. 46, 81. 26 Wendell, p. 675. 2 Rutherforth, pp. 570, 580. 11. That if such commissioned officer violates instructions, limiting him and his command to certain acts of hostility, and exceeds the bounds tlierein prescribed for him, he is guilty of an offence against his own government, whose rules for his guidance he has infringed ; but he cannot be regarded as a criminal by the other belligerent, or by neutral nations ; for he is innocent of any offence against international law. — 3 Phillimore p. 137. Bynkershoek, p. 134. 2 Rutherforth, pp. 596, 597, 598, 599. Wheaton, pp. 247, 248, 249. 12. That the only government having power to enquire whether such commissioned officer has exceeded his instructions, or violated the rules laid down for his guidance in his conduct towards the enemy, is the government which commissioned him. — Bynkershoek, p. 134. 2 Rutherforth, pp. 595, 6, 7, 8 & 9. Wheaton, 247, 8 & 9. 1 Opinions of Attys. Gen., pp. 46, 81. Westlake's Priv. Int. Law, p. 120. 26 Wendell, p. 675. 13. That a violation of neutral rights, either by capture in neu- ■ 1.; !•! I v. i 1 . 1 -i 'I Si '"J- ■» 'f-m . ^ •"'!■ I? ''<■< ^;, 224 trill tervltoi'y ofeiicmy's property, or by the use of iietunil territory for the passage of troops or as the starting point of an expedition arig Alerta vs. Bias Mornet. 8. Peters Hep. 425. La Amistad de Rues, o Wheat. Rep. 889, per Story. Wlieaton, p. 722. Judge Tallmadge on McLcod case, 20 Wendell, pp. t36:> to 099. 14. That a neutral government cannot take cognizance of, or {.ronounce a judgment upon, any act of hostility committed by troops under the command of an officer commissioned by one belli- o-erent, within the territory of the other belligerent. — Lawrence's Wheaton, })p. 40, 42 in not'iH. Bynkershoek, pp. 115, 11(5, in notis 119, in wjHm, Notis. 20 Wendell, p. 688 & 9. Vattel, B, lib. 7, cap. § 108, 110. Halleck, p. 78. 8 Phillimore, 201, 202. 2 Burlama(iui, pp. 198, 208. Lee on Captures, pp. 109, 138. • 2 Rutherforth, 550, 551, 552, 558. 2 Azuni, p. 04. 15. That if a neutral nation, on the demand of one bel- lio-erent delivers up to that belligerent soldiei-s and officers of the other belligerent, who have committed acts of hostility in the country of the belligerent demanding such extradition, on the '■'•round that such acts were crimes, such pretended neutral nation thereby violates its neutrality and espouses the side of the bellige- rent to whom extradition is made. — 2 Burlama([ui, p. 198. 2 Rutherforth, pp. 552, do^i. Halleck, p. 029. Bynkershoek, pp 69, 118 in notis. 16. That as a civil war existed between the Federal States and the Confederates States on the 19th October last ; Her Majesty had proclaimed Her neutrality in the war ; and Bennett H. Youno- was then a commissioned officer in command of a detach- ment of Confederate troops, operating under orders from his Govern- ment within the territory of the Federal States, the act of Bennett H, Young and his command cannot be measured by the provisions of the municipal criminal code of the enemies of his country ; nor can our Courts or officials hold his acts to be crimes within the purvieu of the Ashburton treaty. — U. S. v. Palmer. 4 Wheaton, p. 52. 17. That the assemblage of Citizens of the United States, for the puipose, on behalf of the Confederate States, of sacking and 225 burning the town of St. Albans is an overt act of treason aiiainst the United States. — 1- parte BoUman ct al. Marshall on the Constitution, p. 42, 44. U. S. v. Burr. do. pp. (51 02 6:3 65 60, 69, 70, 73, 81, 82. ' ' 3Ir. Kerr said : — To me has been confided by my learned friends the duty of opening the case for the prisoners. It is, I can assure your Honor, Avith fear and trembling that I take upon myself the resuonsi- bihty necessarily attaching itself to my position. Not that I believe that our cause is weak, not that I am afraid that our just claims will be ignored ; but the great importance of the principles involved, the magnitude of tlie interests at stake, and the almost boundless field for research and argument which spreads itself before the counsel employed, — all tend more thoroughly to l)ring before eacli of us his own utter hicapacity to render tlieir meed of justice to the ri'dits of our clients. That this is one of the most important cases ever presented for the consideration of any of our Courts, Avill not be denied ; — that it has already produced a greater efiect upon the passions and prejudices of men both in Canada and the former United States, than any other cause rch^jre in this Province, will readily be admitted. It has been the moving cause of a call to arms Avithin the Colony. It may justly be looked upon as the origin of those fears which culminated in the denial of asylum to political refugees by our Provincial Parliament. From it the care- ful observer can trace the orighi of the pressure brought to bear upon our Judges, to induce them to degrade the palladium of the law into the minister of the temporary passions of the ( ioverninent. and the servile instrument of the interests of the United States. The very papers produced by the prisoners were bought by the price of blood, for ouo of the messengers despatched to Piichlnond to obtain information for your Honor, but the day befjre yesterday expiated the crimes of being a loyal soldier, a true friend, and a gallant patriot, on the gallows at Johnson's Island. Your Honor can read in the treatment of the messenger, the certain tate of those who sent him on his errand. Cursed be the hand Avhich spareth, is the motto of the United States. Can it be wondered at then that the knowledge of our responsibility in the grave task we have undertaken should weigh so heavily upon us ; that it should like a pall hang over us wdiithersoever we may go. But all that we ask — all that we pray for — is, that it may not so deaden our ener^i-ies as to render us incapable of laying before you fairly, manfully and faithfully, all the points in this most interesting case, with the prin- ciples of law which define the positions of the prosecutors, the pri- soners and the judge. The question of extradition of criminals by the authorities of the country within the limits of which they had sought * li- •' !< ^k KfY \ Ak -"s^ 226 " Ji'f. .Iff P' ■ '% 11 , . ' . If ■ . ■ : ■III ♦ , 1? t , refuge, to the authorities of the country within whose terri- tories they had committed a crime, was one which formerly occu- pied the attention of statesmen and publicists throughout the civi- lized world. Like every other important principle of what may bo called international expediency, the existence of the right to demand Avas by some authors denied, by others admitted. The question however was shrouded in obscurity, and the greater num- ber of the nations of the world have pronounced against the exis- tence of any such right, by entering into treaties by which they agreed under certain conditions, to deliver up persons to the autho- rities of the other parties to the treaty, accused of having com- mitted crimes within their jurisdiction. It is unnecessary here to enter into a detail of the treaties entered into between different States wherein an extradition stipulation appeared ; it is sufficient to say that Great Britain has, at different periods, entered into two on that subject with the United States. The provisions of the first made, in 1794, and known in American works as the Jay Treaty, was in its extradition clause almost precisely similar to the tenth clause of the Ashburton Treaty ; in fact no difference of any moment was apparent, save the promise to vest jurisdic- tion in the judges and magistrates. It was limited in its opera- tion to twelve years, and expired without any great use having been made of its provisions. The only cause celehre arising under it was that of Nash aUas Robbins, to which reference will be made hereafter. In 1842, the Ashburton Treaty was entered into between Great Britain and the United States, by the tenth clause of which it was stipulated and agreed, that on demand the high contracting parties should deliver up to justice, all persons who being charged with the crime of mur- der, or assault with intent to commit murder, or piracy, or arson, or robbery, &c., &c., should seek an asylum, or be found within the territories of the other, provided that this should only be done upon such evidence of -criminality, as according to the laAvs of the place where the fugitive or person so charged should be found, would justify his apprehension and committal for trial, if the crime or offence had been there committed ; and it was further provided, that the evidence of criminality should be heard and considered by the judge or magistrate issuing the warrant, and that if on such hearing, the evidence should be deemed sufficient to sustain the charge, then the justice was so to certify to the proper executive authority, in order that a warrant of extradition might issue. It has been ruled in this case that the proceedings were rightly instituted under the Provincial Act 24 Vic, cap. 6 ; it becomes then my duty to enquire what are the powers of the officials mentioned in that Act, with reference to the examination of the sufficiency of 227 •ence was iates, that HP to mur- ,rson, ithin done .f the found, Icrime ided, ■edby such m the jutive lightly then tioned icy of the evidence to sustain the charge. In order so to do, it becomes necessary to examine the powers and duties of our Justices of the Peace out of sessions, in their examinations into charges of indictable offences against persons brought before them. By the 80th clause of 102 cap. Con. Stat, of Canada, it is provided that in all such cases the justice or justices shall, in the presence of the accused person, take the statement on oath or affirmation of those who know the facts and circumstances of tlic case. By the fifty-seventh article it is provided, that if in the opinion of the justice the evi- dence is sufficient to put the party upon his trial for an indictable offence, although it may not raise such a strong presumption of guilt as would induce such justice or justices to commit him for trial without bail, then such justice shall admit the party to bail ; the deduction, therefore, from the evidence the justice has received from those who know the facts and circumstances of the case, in order to justify his committal for trial, must be one raising a strong presumption of guilt against the accused. Can it be pretended that the justice having throe alternatives to choose from, all founded on the comparative strength of the evidence against the prisoner, viz., either to discharge him absolutely, to bind him over, or to commit him for trial, that that discretion does not in fact give him poAver to examine and weigh the evidence, in order to discover to which course the character of that evidence forces him ? If from the nature of the evidence adduced, which in itself is incontroverti- ble, it is '"parent that to commit him, or even to bind him over, would e>j[-use the country solely to the costs of a trial, which must result in the acquittal of the prisoner, the duty of the justice is clearly to discharge. If, on the other hand, no evidence has been rendered changing a prima facie case of felony, it is the duty of the justice to commit. Can it be pretended that a man who has acted as pubhc executioner at the execution of a criminal condemned by a competent court to death, would not, were he apprehended for murder, be allowed before the magistrate holding tlie preliminary examination, to produce the record of conviction and the document proving his own status as executioner ; and would it be pretended that the magistrate had no right to examine into such evidence, and that it was his duty to commit for trial for murder because it was proved by the prosecution that a man had been hanged by tho prisoner ? Numberless other cases may be cited in which the doctrine advocated by the prosecution is shown in all its true ab- surdity. This, let it be remembered, apphes solely to cases arising under our municipal law, where the injustice is suffered by one of our fellow-subjects, and where his committal for trial, even for an offence of Avhich he is not guilty, can only, at the most, entail upon him the temporary inconvenience of imprisonment in one of our gaols ; t: I .li ' i: J ( ■m .■ 1) > i' W i| i [^ r V- i ; \-\ :4 * ; ■■ :^i tu-^ ■b. ^;^i ; M ' • -■•"'■" ; 228 but wlicn the extradition to a foreign power of a man who has com- mitted no crime against our huv, but who seeks solely in a British colony an asylum from the enemies of his country, and who trusts him- self to the national honor of (Jreat Britain f)r protection, is de- manded, it l)ecomes us to ])e exceedingly careful, lest in our anxiety to concilitate powerful neighbors, we are not induced, in the elo- quent words of Lord Pahnerston, to violate the laws of hospitality, the dictates of humanity, and the general feelings of mankind. Let us beware lest we should be hereafter universally and deserv- edly stigmatised as dishonored, by our hasty conduct in this case. The necessity then for a careful and set' veiling examination of the evidence in an extradition case is apparent ; all the facts and circumstances arc to be looked at with the greatest care, in order that the magistrate may be fully satisfied that the prisoner really has committed the oft'encc of which he is accused ; he must beware lest in a case of manslaughter he commit for murder ; he must take care that the offence is not larceny whilst he commits for robbery ; but above all he must be satisfied that the man is guilty of the crime with -which he is charged. In the examination of this case, if we can (juote authorities from American authors, and cite precedents from American reports, the United States government surely will not comi)lain of our drawing from their arsenals weapons Avherewith to combat their pretensions. The judgments of their Supreme CWrt arf" acknowledged in England as of the very highest au- thority, are cited at the l)ar as of the very greatest weight, and are listened to by the Bench with the greatest respect and attention. The very brightest ornament of that court, he aVIio in his lifetime was acknowledged by all parties as the greatest judge who ever adorned the benci in the United States, and who was pronounced by Mr. Justice Story, in an address to the bar, to be the expounder of the constitution of that republic, was the late Chief Justice Marshall. His hitellect was so essentially judicial that every dictum of his is precious ; his intuitive perception of law was so marvellous as to enable him to discover the most recondite prin- ciples at a glance. When then we have on record his deliberate opinion on any point, we may almost defy the most wily sophist to shake our confidence in the strength of the position taken. One of the most masterly efforts of that distinguished man was made in the argument before Congress, when the question of the extradition of a man named Nash, alias Bobbins, came up for consideration. It would appear that Nash was one of the crew of H. M. S. Hermione, which was taken possession of by mutineers, who, after killing some of the officers, carried the vessel into a Spanish port. Years after, a demand for the extradition of Bobbins, under the treaty of 1794, was made on the American, by the British Government, on a i" iced ider Itice }ery so 229 charge of nmrderinn; one of the oflficers of that vessel on the occa- sion in question. Nash was extradited, notwithstanding he set up in his defence, and endeavored to prove, that he was an American seaman who had heen impressed on board the Ilermione, and that it was for the purpose of regaining his liberty that he liad joined in the mutiny. Great excitement raged in tiie United States, the case was brouglit before Congress, and it was in defence of his friend and patron, George Washington, that the late Chief -Justice, then Mr. Marshall, delivered a speech on the subject, which for a time silenced all opposition. Amongst the positions taken by him, was the following : " That had it been proved that llobbins was an American — had been impressed on board tlie Ilermione, and had been guilty of homicide in endeavoring to regain his liberty, such homicide would not have amounted to murder, and he could not have been extradited," — thereby clearly showing that in his opinion the forcible impressment, if proved, should have been taken into consideration, and that the person who rendered the decision was bound to weigh all the evidence, even of justification, and to give effect to all the circumstances surrounding the act, by which the enormity of the crime might have been diminished or mitigated. The next case in which any point of importance was decided is that of Christiana Cochran, who on the demand of the British (rovern- ment, was extradited in the year IS-to, on a charge of murder. There the counsel for the accused interposed, as an objection, to any further proceeding before the commissioner, a jilea of insanity, which, in the words of the (4th Atty.-Gen's. opns., p. 202) Atty- General's opinion, Avas, after a full and impartial investigation, overruled. This, then, is a corroboration of the opinion expressed by Chief Justice Marshall. The next case from whicli we can obtain light is that of the Gerrity. The schooner J. L. Gerrity was an American vessel, owned in the Northern States. Previous to her departure from jNIatamoras, a neutral port, for New York, a number of men, amongst whom were the prisoners Tirnan & al., engaged passages to the latter port. Two days after the vessel sailed, the passengers rose in arms, declared to the captain that " you are now to consider yourself a Confederate prisoner," took possession of the vessel and its contents, and sent the captain and crew adrift in one of the boats. They were apprehended at Liver- pool on a charge of piracy on the high seas, and their extradition was demanded under the Ashburton Treaty. For them it was contended, 1st. — That piracy on the high seas was not an extra- ditable offence ; 2nd — That they were acting on behalf of the Con- federate Government, which was then at war with the United States, and a recognised belligerent. It must be remembered that the only proof of their belligerent capacity was the admission made by ■ ■•:V ■ ■ i: ,' I. I ns ■■■-»• 'vl HI :^:^ r M<,^;. mi I" ') ■ i ■n r I 1*. . 280 the captain of the Josepli CJerrity, of the declaration to him by one of the pas3cnt(s are bound to look at all the cir- cumstances in order to come to a proper judgment on the nature of the act. He, moreover, admits that the declaration of the prison- ers that they were acting on behalf of the Confederate Government, negatives, to a certain extent, the presumption that they were pirates ; but he cannot say that that declaration without proof of commission or instructions from the Confederate Government, so clearly negatived the presumption of piracy as to oust the justice of his jurisdiction to commit ; but his opinion maintains most strongly the principle that a prima facie case against a party may be so destroyed by evidence of beUigerency as to oust the justice of his jurisdiction, thereby giving to the justice the judicial power of appreciating and weighing the testimony. Mr. Justice Black- burn in the same case makes use of the following remarks "■ there was evidence of piracy ^Mre fientium and also evidence that the act ■was a belligerent one in furtherance of the cause of the Confede- rates, who are belUgerents and so recognized. The act then, so far as the evidence goes, was either piracy jure fjentiun, in Avhich case we are not empowered to give them up, or it was the act of belli- gerents, and therefore triable neither here nor elsewhere." It must be admitted that there really was very strong evidence of piracy, and very weak evidence of belligerency in the case in ques- *JI '111.1: of f of it, so stice most may stice ower lack- ;liere e act fede- ofar case elli- It e of [ues- 231 tion, the only fact to show the latter character being furnished by the declaration of the prisoners, which the Chief Justice likened to the hoisting of a flag. In the case of a vessel attacking and cap- turing a Frencli merchantman, such vessel would not be relieved from the imputation and conseciuences of being a j)irate by showing that at the commencement of the attack she hoisted a Mexican Hajr, if she did not produce either her commission as a man-of-war in the Mexican navy, or letters of marque authorizing her to cruise as a privateer. Mr. Justice Blackburn very justly remarks also, that if it were the acts of belligerents, it was triable neither in England nor elsewhere, thereby showing conclusively that in his opinion, proof of the belligerency before the magistrate took the case out of the treaty. The next case demanding our attention is that of the Roanoke, which was taken possession of on the high seas, by a party of Confederates under the command of an oilicer, wlio had taken passage in her from a neutral ]iort. 'I'hey were arrested at one of the AVest India Islands on a charge of piracy. At the pre- liminary examination before the magistrate, after evidence of the act of pretended piracy had ]»eeu gone into, the officer in command produced his commission and instructions, and thereupon the Attor- ney-General for ller Majesty abandoned tlie prosecution and they were discharged. In tlie natural order of things we now come to the case which without doubt is the cheval de bataiUc of my friends on the other side, the one containing accordin::; to their ideas the concen- trated princij^lcs of law applicable to the facts of the St. All>ans raid, and one so perfectly analogous that it absolutely puts an end to all our pretensions. I mean the Burley case. The opinions pronounced by the Upper Canadian Chief Justices and Judges have been sub- mitted to the decision of the civilized world, and have become a por- tion of the property of the nations of the earth. Those oj anions, therefore, are now open to critical examination, and any one wish- ing to satisfy himself upon the responsibility incurred by belliger- ents in visiting neutral countries, would be forced into Investigating the correctness of the principles therein laid down as regulating the course to be adopted in all cases, Avherein extradition should be demanded. The (piestions naturally arishig in that case were of vast importance, affecting not only the prisoner, but in their conse- quences touching the question of peace or war between Great Bri- tain and the United States. The law of the Province of Canada was not the only system of jurisprudence involved, but the International law of tlie globe presented itself for discussion. The rights of bellige- rents, the duties of neutrals, the sovereign powers of governments and the individual safety of subjects presented themselves in turn for consideration and settlement. For the nonce then the judiciary of Upper Canada lost their character of Colonial judges and occupied • .. 'J rii;. j;< 1^ v-.; t;'1 m ■ ■■•.! --:1 S : ':.iS :4- I ^y y.:\ 232 M ! J "'■ • t the distinguished ]>0!sition of ^'xpounder-s of the ])riiiciples of Inter- national Law. Their position in the face of the world was the same 03 thac adorned hy the late Lord Stowell in England and Chief Jus- tice Marshall and Judge Story in America. To those eminent jurists is aooioty indchtcd in a great degree for the maintenance of those principles of International Law, which regulate the intercourse of nations in peace and in Avar ; and to tlum is due the credit of having dissipated the many erroneous theories advanced hy puhlicists as forming part of the laAv of nations. To them also is due the praise of having in every instance Avhick came within their ken upon the Bench, administered justice without fear, favor or aftection, to all who appeared hefore them as suitors. It hehoves us then to inquire whether the recent judgment on the apj)lication for Habeas Corpus in liurley's case is based ujion the })rinciples of law applicable thereto, or whether either through ignorance or a base subservience lu [lopular opinion or to (Jovernmcntal pressure, the judges of of U[»per Canada have shown themselves unworthy of the position they occupy. Let us then on this occasion examine with due care the princiides which by those judges are declared as governing their decision ; and discover whether the conclusion arrived at is one justi- fied by tlie facts proved, and whether tlie principles invoked by the Bencli were rightly or erroneously applied. The first proposition made in the order is that the ([uestion of the act being a belligerent act is one solely for the conside .ition of a jtu-y in the United States. The second is that an officer in the navy duly commissioned in the service of one belligerent, is not autliorized thereby to wage all acts of hostility on the lakes or sea against the property and persons of subjects of the other belligerent. The third is that Avhere the officer in command of an expedition deviates, in his discretion from the line of conduct laid down for his guidance in his instruction, the subordinate officers and men under his command by obeying orders so to deviate, thereby lose their character of belligerents, and are responsible criminally for any acts they may commit which in time of peace would constitute crimes. The fourth is that a violation of Canadian neutrality aggravates crime committed in the jurisdiction of the United States. The fifth is that a judge, in a neutral country, has a right to inqu>e into any deviation by the officer of a belligerent power duly commissioned in war, from the pur- port of his commission, on the demand of the other belligerent,and can thereupon declare that in so deviating he committed an offence against the laAvs of the other belligerent, and order him to be con- fined, preparatory to extradition to his enemy. The sixth is, that such })roceedings by the judge are not in violation of Her Majesty's proclamation of neutrality. It might perhaps be as well here to refer to some of those causes celebres which have rendered the 233 'i\" to the Upper Canadian Bencli and Bar so famous throviffliout the \Yorld, Heaven knows that we poor Lower Canadians iiave no pretension to cope with them in any field of either industry f)r takMit. We are, with all due self-al)asement be it spoken, an inferior race fitted by nature for the barren, l)leak, miserable country we inhabit, (.'ontent to live and die as our fathers did before us, we exist without any of that noble fire Avich occasionally leads men to do deeds reflecting honor on their native land. We plod on in tbe weary round of po- litics and law most congenial to our temperaments ; we clhig to the Couivme de Parin ; we reverence IJlackstone ; we enchof Upper Canada is comyiosed of men renowned, alike for their talent, learning and integrity. We have been assured that celebrated men cluster at the bar of that portion of the Province, thick as grapes in a vinery. We have been advised to listen to the words, pregnant w ith research, and learning, uttered by tbe ministers of justice in that favored por- tion of God's earth. — We have been recommended, in lieu of study- iny tbe speeches of Erskinc, Cun-an, Burke, or Plnnkett, to open our ears to the ravishing melody of the utterances of Upper Cana- dian counsel, and from the models of eloquence and style by them set before us, to form our ideas of the persuasiveness and powers of ^ Yraosthenes and Cicero. We had fondly fancied that had the Upper Canadian liench but tbe opjiortunity, the exceeding talent and learning of its members would have been so displayed before the eyes of the whole Avorkl, that scientific men throughout Europe and America would have hailed them as worthy recruits to the select band of international jurists whose writings have shed light on the darkest pages of the law of nations. AVe in this Lower Province, would liave humbly rejoiced at the glory thus reflected on our native land by its distinguished citizens, and the cosmopo- litan reputation of Canadians would have kindled a blaze of en- thusiasm in our frigid bosoms. But alas, how has the reality deceived us I On two different occasions the Upper Canadian Bench has been tried, and on both found wanting. The case of Anderson, the negro apprehended for slaying a man in Missouri, who endeavored to arrest him whilst making his escape from slaveuy, was the first which shook our confidence. There the Court of Queen's Bench laid down the monstrous doctrine that they could not take into consideration +he other facts depriving his act of the criminal complexion, but were bound by the mere fact of his having killed a man, to commit him ''or extradition. A trial in a slaveholding country being a necessary consequence, and Ander- son's execution being the only conclusion ihey naturally could expect :'\ '% % I \ ■ '. ■ .X ■M 234 Mk from tliat action. Not content with thus pcrvertinf^ the law as applicahle to the no;^ro's act, they arrogated to themselves a juris- diction to which they had no right, and committed the accused upon their own warrant tor extradition. Puhlic opinion in England roused hy this frightful injustice, pronounced itself so strongly against the judgment and action of the l^pper Catiadian (Jourt, that a writ of Habeas Corpus was issued from the Queen's Bench in England, to hring Anderson, and the commitment under which he was then held, to England before a tribunal competent to appreciate and understand the princi)>les of law applicahle to the facts, Struck with dismay at the issue of the English writ, the Upper Canadian J\idges resolved to biu'ke all such investi- gations, and from the Court of Common Pleas issued a writ of Habeas Corpus under which the commitment of the Court of Queen's Bench was (luashed as having been nuule witho>it jurisdiction, and Anderson was thereupon discharged. Sucli were the facts and cir- cumstances of the first case in which 1 pper Canadian Judges had an opportunity of showing their aciiuaintancc with the principles of International law. It must l)e admitted that it was a nii-ited by the Court of (Jueen's IJench, when they declared that it was their duty to commit him for extradition under a warrant which, clearly they had no right to issue, to be oliliged to call in their brethren of the Connuon Pleas to free them from the embarrassing position in Avhich they then were, thanks to their own ignorance : but Upper Canadian credulity is (juite ecjual to Upjier Canadian vanity, and the public of that portion of the Province were still more deeply persuaded of the intellectual faculties and learning of their judges, by the exceedingly sharj) and skilful manner in which they had managed to elude the action of the English Courts in the matter. But to return to Burley's case, the Upper Canadian Bench taking no heed to the outburst of indignation in England, and in fact throughout the civilized worhl at their ruling in the Anderson case above referred to, again in this case advanced the doctrine that the judge or magistrate in Extradition cases could not consider any evidence which might be given before him tending to destroy the heinousness of the offence charged. They, in fact, decided that if' by any testimony it is proved in any Extradition case where the charge is murder, that a man has been killed, that it is no part of the duty of the judge or magistrate to intpiire into any other of the circumstances tending to show either that it is manslaughter or justifiable homicide, those are questions according to their doctrine for the consideration of a jury of the State wherein the act was committed. By a parity of reasoning, if a rebellion were to break out in the State of New York, and men were killed by the rebels, If- ft cing who should afcvwards seek rcfiigo in Canachi and he domanded hy the United States authorities^, our jud^e or magistrate should commit for Extradition on the ^oiuid of nuirder, having heen com- mitted, leaving]; to the jury of Tnitcd States citizens, the ri^^ht of deciding wliether the crime really was nuirder or treason : thereby, in fact declaring that the Extradition treaty lias done away with the right of asylum for political refugees in Canada. Tliey have forgotten that this committal i'or Extradition is, so far as this country is concerned, a final Judgment ; and surely if we do not wish to he looked upon as the most ])>isillanimous cowardly race upon the face of ihe earth, some stand must lie made agauit^t this departure hy judicial authority from tlie traditional ])olicy of the empire, lldc Plxpte IJollman et al., Marshall on the Constitution (on p. 3-i to 41), the People c. Marthi, et al., 7 N. Y. L. Observer (p. 52 to 5(5). 4 Ojunions Atty.-(Jen. j). 20'2. The other jxjints laid down by the judges will ))e considered as they present them- selves in the order of my arginnent. Abandoning for the moment the general principles of Ex- tradition, and the cases cited. T proceed to address myself to the facts of this case. On the I'.'th of Oct(»ber last the town of St. Albans, in the State of A'erniont, one of the so-called United States of America, was tlirnwu into consternation by the appearance of a body of twenty-one armed men whcse leader declared that he was a Conferiesof the Confederate States, thev I'orced the officers of those banks to deliver up to them divers valuable securities of the United States, worth about half their nominal value, and all the bank notes in the institutions at the time. I wish to draAV vour Honor's atteu- tion at this stage, to the fact that bank notes and securities for the payment of money are, under the declaration of the Government of the United States, contraband of war, and liable to be taken from a neutral vessel under the same circumstances as would justify the forfeiture of munitions of war. Whilst in the bank these scenes were going on, another party had been detached to secure horSes and equipments for the raiders. A sufficient number was procured to mount them all. In the interval a number of United States citizens had been taken prisoners, and were conveyed to and kept under guard in a public sipiare. During the time a party of the raiders were in possession of the St. Albans bank, a person of the name of Breck entered to pay a note. lie was informed that he ■was a prisoner to the Confederate troo})S, and the money Avhich he i I i -:''ti: m 111 '•iA H' ■■IH , ]f:m i' !■'■ Wa- rn \m 236 had brought with him was taken from liim by one of the two raiders tlicn in the bank. A skirmish then ensued between the raiders mounted, and the townspeople who had armed themselves. An attempt to fire the town was frustrated, and the raiders being formed in military array retired from the town pursued by some of the citizens, who fired upon them in their retreat. A pursuit M'as organized, but the whole })arty of Confederates succeeded in cross- ing the line to Canada, where, without warrants or sworn informa- tions having been laid, thirteen of them were arrested by the country magistrates and constables. So soon as the news reached Montreal and Quebec, Judge Coursol was despatched to the fron- tier to conduct the proceedings, and was ordered, by the Attorney General, to arrest the offenders without waiting to make out infor- mations or to draw warrants. It is unnecessary for me here to give any further details of the proceedings had before Mr. Justice Coursol, for they are now matter of history. The facts of the raid as given above are in evidence before your Honor. The commis- sion of Bennett II. YouuLr in the Confederate armv, and his mstructions to form a corps of twenty Confederate soldiers, escaped prisoners of war ; his instructions to report for orders to Messrs. Thompson and Clay, and his instructions to report to Mr. Clay alone for orders, are fully and satisfactorily proved in this case. The actual ordei, to make the raid, signed by Mr. Clay, has been produced and proved ; and the muster rolls of the difierent companies, to which the prisoners belong, in the Confederate service are also before the Court, authenticated by the jjroper authorities. From these papers no other deduction can be drawn than that on the 19th of October last Bennett 11. Young was an officer in the service of the Confederate States, in command of a party of Con- federate troops, detailed for special service by that Confederate Government to St. Albans, in the State of Vermont, with which the Confederate States were then at war, the State of Vermont then being one of the United States — which war by Her Majesty had previously been acknowledged as a perfect war, and by Her also ller subjects had been warned to maintain and keep a strict neutrality bet.veen the parties contending. It is necessary here to refer to a point in this case of vast importance, with reference to the very existence of the treaty, under the provisions of which the extradition of the prisoners is demanded. Since the date of the treaty, five or six States have been admitted into the Republic, at that time composed of a number of sovereign States recognized by the world as a government under the name of the United States. Since that date, nine or ten of the States forming a portion of that Republic at that time have seceded therefrom and erected them- .selves into a separate republic, under the name of the Confederate j ■ -*' If lere \e to the the 5 at by Ites. that em- rate 287 States. Can it be protended that (Jrcat Britain lias the same rights, against the United States, which can be granted to her now, as at the date of the passing of the treaty. If a man commits a crime in Canada and takes refuge in Richmond, can the riovern- ment of the United States extradite him on the demand of the British Government. If, on the contrary, a man commits a crime in Texas, which was only admitted into the Union in l:-<4."), and which was in 1842 an independent State, can he bo extradited on demand of rho United States Govemmont if ho seeks a refuse and be apprehended iii Canada ? Neither of the two cases Avas anticipated at the date of the treaty, and it cannot be i)retended that the clauses of a convention between two nations are. a whit more elastic than the terms of a contract between individuals. It is also to be remarked that the Constitution of the United States is sincrv.biv in its formation ; the rules ap])licable to a monarchy do not a}.^jly to a republic. Treaties between monarcliies or empires are made by the monarehs or emperors ; but the United States always made their treaties in the federal capacity of a number of sovereign States constituting the United States. This, then, was nothing more or loss than a republic, the sovereignty of which was immediately dissolved by the breaking out of civil war between the several sovereign States of Avhich it was composed : for in a republic the sovereignty subsists solely in the union of the mem- bers of the republic, it may be urged that this is a question for the consideration of the Government of Great Britain ahMie, that it falls within the powers of the Executive, and that judges are bound in those matters to conform to the rules of conduct laid down by the Goverment, and that the United States being still recognized by the Queen, you arc l)Ound still to presume the exist- ence of that republic. To the student the difficulties mot with in his search f<)r the true principles of the law of nationsare almost insurmountable. Apart entirely from the impossibility of clearly defining all the principles of that law, if law it really can be called, which does not provide or admit of a judge in the contentions of the parties, who, it is pretended, are bound by its rules — whose principles no machinery exists to enforce, and whose spirit and letter can be infringed by any nation strong enough to set its enemy at defiance ; the numerous commentators upon international law have to a very great extent, by their incau- tious labors, tended to burthen the student with the task of seeking amongst their private opinions of what should be, what really is the law of nations. They have, without due consideration, adopted the usage of two or three of the nations of Europe withhi the last few years, as legal amendments or modifications of that law on the sub- ject of war, taking it for granted that those nations have a right to V *■ iV ■■ .It ; : • .1' . ■-!, '■.■: i.\l •: : i V i :.::•; ,| ' ■ 1 ,i ■ . : 1 j \i n fc, It- 1 i , ;l. k- 288 dictate to the rest of the world the proper course of conduct to be pursued by belligerents, forgetting that all nations are equal, and that no nation is bound to submit to the dictation of another. They have also taken conventions contained in treaties as declaratory of existing law, whilst really treaties must be looked upon as means for obtaining the recognition of principles exceptional to the general rule. But few of the writers of this century, if any, have shed any light upon that law, and in order to obtain a faithful insight into its principles, boldly, perhaps coarsely portrayed, we must refer to the publicists of the last two centuries. Of course in so speaking I make no reference whatever to the cases decided in the English Admiralty and in the United States Supreme Court, which are all of the highest authority and are moreover founded on and sustained, by, the writings of the authors, who tlourishcd in the seventeenth and eighteenth centuries. I have now arrived in this case at that particular point where it becomes necessary to consider the rights of belli- gerents. Wars of old were divided by the commentators into perfect and imperfect ; the perfect war is also called public or so- lemn, and is where one whole nation is at war Avith another whole nation ; an imperfect war is one limited to places, persons and things. A civil war, when it has attained sufficient magnitude to induce foreign nations to declare their neutrality, is a perfect war. In such perfect war both parties are belligerents, and entitled to all belligerent rights given by war to sovereign governments. It is perfectly clear that so soon as war breaks out between sovereign Go- vernments, the municipal criminal codes of the belligerents are silent and inoperative quoad acts committed by the troops of either of the belligerents in the territories of the other. War is a recourse to violence, to repress which municipal criminal codes are instituted. But war is legal. Under the law of nations that law i^ superior to any municipal code. A perfect war gives the right-to the members of one belligerent nation to kill, spoil and plunder the members of the other belligerent nation wherever found, except in neutral ter- ritory. Such being the case the municipal codes having for their object the punishment of parties killing, plundering or committing other violence, are quoad members of the other belligerent nation paralyzed by the superior authority of the law of nations during war. Inter arma silent leges. All offences committed by members of one belligerent nation upon the members of the other on that others soil, — are within the jurisdiction of military tribunals solely, and are gauged by the laws of war. That this doctrine is recognized in the United States cannot be denied. The President's proclama- tion of the 24th September, by which the power of the judiciary was abrogated in cases affecting individual liberty and the establish- 't.»\ i; > tting ation war. rs of hers and ized ima- liary tlish- 239 ment as matter of fact of martial law tlivoughout the limits of the former United States, as well the loyal as the rebel, shows conclu- sivelj the correctness of the position by me taken. If further proof be wanting, take the case of Beal, the leader of the Lake Erie expedition, for participation in which ]5urley was extradited as a robber, and gather from tlie proceedings and sentence of the court- martial held on him and its approval by Gen. Dix, whether the Upper Canadian judges were justified in believing that he would have a fair trial before a jury. It has been held by some authors of late years, that only tlie regularly commissioned officers and enrolled troops of one belligerent are authorized to enter into hos- tilities against the other belligerent. Without admitting that pro- position, still as this case presents the prisoners in those capacities, I am, for the sake of argument, willing to adopt it as the rule. Natioiis are sovereign. If the Government of one bellirovided themselves with houses taken from tho people ; and after making perhaps double their number of pri- soners, they left the placr, pursued by an armed band of citizens, who kept close fire upon them. They, however, succeeded in making their escape to Canada, where thirteen of them were arrested, at the re([ncst of the United States authorities. Out of tho whole of this cxpeditioii the ]>rosecution has thought proper to single out the taking of Mr. Brock's money, tho smallest incident in the whole transaction ; a fact which cannot, with any reason, be abstracted or severed from the main project. It is unnecessary to dwell upon the dreadful civil contest which has now been raging for five years with uninterrupted fury in this once happiest country in the universe. The world has followed the history of this awful struggle with surrow and dismay. Eleven independent States have asserted their rights as free members of a voluntary association, to sever from this association, which they had formed for their individual interest, reserving to themselves their separate sovereignty. Twelve millions of the people of this democratic nation demand to govern themselves according to their own views, alleging violations of the original compact, aggression, interference, and oppression of their individual States by the others, and for open threats against their rights and liberties. This sepa- ration is denied them by the other States, because they are more numerous and powerful, — because more States being combined in one policy, they, the more powerful party, believe that subjugation and coercion is just and lawful, and they insist upon imposing their will, their views, and their ideas upon the eleven independent States. The fifteen States on one side insist on ruling the ten refractory States. The twenty millions of the North claim and insist upon uncompromising obedience from the twelve millions of the South. The whole population of the country is divided in two hostile camps. On both sides we witness that deep, intense, unforgiving, unre- lenting hatred which belong to civil wars only ; that hatred which succeeds fraternal love. The act imputed to the prisoners arises out of this civil war, and it cannot be the ground of extradition under the statute. 1st, The act is a political one, inspired by, and connected with what is called rebellion by those applying for the extradition of the prisoners ; 2nd, The act was one committed by soldiers of a belligerent in the carrying out of war against the enemy ; and they are answerable to no municipal tribunal of the enemy : it was a military act, and if irregular, cognizable only by the military tribunal under martial law ; 8rd, It is a national offence, if any, and not an individual one. 247 38. al Every man putting his foot on English ground, every stranger owing only a local and temporary aiiugiance, hecomes as free as the British born subject. Our laws guarantee to every in- dividual the safe hospitality of the soil. It has been Eng- land's pride, and England's boast, that no terror could ever in- duce her to forego this principle, which is as old as any of the great liberties of her constitution. Coke says : " Sub- jects flying from one kingdom to iinother, and, upon demand made by them, arc not by the laws and liberties c*' kingdoms to be delivered." This principle will not be denied, anA it is unneces- sary to dwell upon it. The only exception to it musi be found in treaties made for the purpose of obtaining the surren('er of crimi- nals. The demand now made for the extradition of th3 prisoners, ia founded upon the Ashburton Treaty. The excepti jn made by the Treaty to the general principle of English law, that no fugitive shall be surrendered, excludes most strictly every offender whoso crime does not come within its provisions. The treaty comprises murder, assault with intent to commit murder, piracy, arson, rob- bery, and forgery. The object of the Treaty is to allow tho extradition of criminals who have violated the laws of nature, — offenders against the universal code of humanity, — those who liavo committed such outrages as attack the very basis of all society, and whose impunity would become a source of danger to mankind. It is the common interest of every community to bring such offenders to justice, — to put them out of the pale of civilization, — to detei' others from committing the same offences, by the certainty of having no escape and finding no refuge. Our law and the Treaty does not include, but, on the contrary, positively excludes any political offence, or any crime arising out of a political struggle, or a civil war. Both parties to the Treaty — Great Britain and the United States — have positively limited its dispositions to offences against the municipal code alone, carefully omitting those which could have originated or might have been inspired by political passion, and having for their object a political result. The best interpretation of the Treaty, and one which the party claiming tho extradition cannot question, is certainly that given by the execu- tive of the United States themselves when this Treaty was made. We find in President Tyler's message, transmitting this Treaty to the Senate for consideration, the following declaration : " The article on the subject in the proposed Treaty, is carefully confined to such offences as all mankind agree to regard as heinous and destructive to the security of life and property. In this careful and specific enumeration of crimes, the object has been to exclude all political offences or criminal charges arising from wars, or intestine commotions." Professor Woolsey, of Yale College, in the » '' yk 1 T; fl i :■ tf,-V I r ■ m >1 I t: I ■ i ' I] I : s t • 1 ■ < ■ •••I. -'f 248 I' : ij i iS-: I! I i. United States, writing on this very subject, says : " The case of political refugees lias some points peculiar to itself. A ration, as we have seen, has a right to harbor such persons, and will do so, unless weakness or political sympathy lead it to the contrary course ; but they may not, consistently with the obligations of friendship between states, be allowed to plot against the person of the sovereign, or against the institutions of their native country. Such acts are crimes for the trial or punishment of which the laws of the land ought to provide ; but do not recpiirc that the accused be remanded for trial to his native country." It seems most strange that the Executive of the United States, in 1805, should claim the extradition of the prisoners under the Treaty, which their Executive of 1842, who made it, declared to exclude all pohtical offences or criminal charges arising from wars or intestine com- motions. In England the doctrine of the inviolability of asylum for political offenders, has been well and forcibly expressed by the most distinguished statesmen and writers. Sir Corncwall Lewis, in his book on foreign jurisdiction, says : " The crimes to which the principle of international extradition properly applies, are those ■which concern the lives and property of individuals, and which the entire nation has, therefore, a common interest in repressing. If all governments were perfectly equitable and dispassionate, the principle might be safely extended to political offenders ; but in the prosecution] of political offences, the Government may be con- sidered as an interested party, and, therefore, another government is indisposed to give up persons charged by it with crimes of this complexion. The question seems to involve a contest between the Government and a portion of its subjects ; and the extradition assumes the character of interference in the internal political affairs of another state. In cases, therefore, of civil war, of revolution, or of active political proscription leading to the existence of a large body of political exiles, a powerful state, which does not fear the displeasure of the foreign government interested in the question, is impelled by the dictates of humanity to afJbrd them an asylum, and to refuse their extradition when demanded." Lord Palmerston writes : " Tlio laws of hospitality, the dictates of humanity, the general feelings of mankind forbid such surrenders ; and any independent Government Avhich of its own free will were to make such a surrender, would be deservedly and universally stigmatized as degraded and dishonored." If the interpretation to be given to the statute be such as to exclude all political offenders, it becomes necessary to determine what may be called a political offence. The shortest and most practical definition is certainly the one contained in President Tyler's message, i.e., a crimhial charge arising from war or intestine commotion. We may consider as such any act 249 lie )n, l-ge he is Ion Ihe les lie done by any individual connected with cither of the parties at Btrifo in a social outbreak, a revolution, or civil war, or any act ordered and sanctioned by one of the bellifj^erent parties, even when it involves the destruction of lifo and property. Whenever the fact complained of is manifestly not a free individual act, in- spired by common passions for self-gratification, but ori^^inated in the assertion of a right, caused by a feeling of devotion of the individual to the party to which he belongs ; or in a compli- ance Avith orders of the constituted party authorities acknowledged by him as his legitimate superiors, executed by him under a correct or a false sense of duty or patriotism, then it cannot be a violation of the municipal I;iw8 ; — it is a political offence. These exceptions of political offences or military acts, if they have any meaning, must certainly be intended to cover the killing of individuals, the taking or destruction of nroperty in a p ilitical struggle, and all such deeds as, indeper ient of such eioment and unconnected with that object, would otherwise be qualified as murder, attempt to murder, robbery and arsoii. I the mere fact of killing, of robbing, or of burning, irre. pective f the f,: 'at objects of those acts, were held sufficient to give rise to cxtrad m, then Austria might claim, and jvistly claim, that Kossuth o. < -ari- baldi should be given up by England. And if the ar^H now under consideration were not of a kind to be excepted fror. th« operation of the Treaty, there was no utility nor sense in the exception made in favor of political offences. It is manifest that the offences con- tem[)latcd by the treaty can only be those acknowledged, undisputed and unquestionable violations of municipal laAvs, admitted as such by all mankind ; and not such acts as would be endorsed and ap- plauded by a large portion of the community where they were done. When a deed has been committed by a regularly organized force of one of two parties engaged in a civil war, or even by an irregular unorganized band, those who participate in it, do so with the sole view of assisting their cause. Whilst one party condemns it as a crime, the other justifies it as a jr -t, necessary and praise- worthy act. Foreign governments, or '•! ign tribunals, cannot qualify it as a crime without passing judgment in favor of one of the parties, and condemning the other. To allow extradition in such a case would be the virtual abandonmcr.'t of the principle of inviola- bility of refuge. Mankind agre^is and ought to combine, to force ordinary criminals out of every community, to deprive them of every refuge, to bring them to punishment ; but humanity and civili- zation protest against the delivery to their enemies, to the authori- ties against whom they have waged war, of parties who, in a social or political strife, have destroyed hfe or property. Every member of a well organized community is interested in the rendition of a com- ■■ 1^ . /I ♦n 1 ■V. ; i!i ■ i ■ Ir Ji 250 !■■ If ; I' m f H mon criminal ; but every man who can appreciate right and liber^ is highly interested in jealously resisting the extension of this prin- ciple to political offenders. God and conscience may command our resistance against aggression or illegal arbitrary power ; we may be crushed in the attempt, we may have to flee for refuge out of our country, and a precedent in such a case as this becomes a rule of international law, and it would be invoked and applied against us. Whenever a party or a nation is interested in obtaining the extra- dition of individuals who have been engaged in civil war, it is easy to make out a prima facte case of murder, attempt to murder, robbery, or arson. No man who has actively participated in a civil war has not killed, or attempted to kill, or destroyed property. The pretension, therefore, to allow no) ' but the evidence of the party claiming the extradition to be adduced, to refuse to the party implicated the right of showing the political connection of the deed, is too absurd to be discussed. The simple enunciation of such a proposition bears its own condemnation. IIow could a political refugee ever escape extradition, how could he ever invoke the sacred right of asylum ? It would be a delusion, a mockery. To carry out the principle, to protect the refugee, it is indispensable that the character of the individual and the facts should be shown, in order to establish that, in the act complained of, the principal ele- ment was political. The moment extradition is demanded, the accused has a right to set up and show that he is a poUtical offender, and the judge is bound to allow evidence to substantiate his allegation, which if proved, negatives all criminality and ousts him of all jurisdiction in the matter. I would contend farther that the judge, as representing society, intrusted with the safe-keeping of our liberties is bound to ascertain that the party brought before him is not a political refugee, and the offence not of a political character ; and in a case of doubt, he is bound to discharge the pri- soner, because if he be a political offender, he is innocent and the judge has no jurisdiction over him, and he would be illegally using his authority as an instrument of oppression and vengeance. In any ordinary case of crime concerning any outrage against the laws of nature, for the punishment of which the Treaty provides, when ifc is not a political act, the right of extradition is universally ad- mitted. But in this case you have one third of the nation, one of the contracting parties to this Treaty, who raise their voice against the application ; a large portion of the community on whose behalf those stipulations were made, and in whose name the extradition of the prisoners is demanded, have constituted themselves a distinct political organization and Government, acknowledged as such by Great Britain, and they demand pro- lection for the prisoners, whom they declare to be innocent of "v i I f 251 using . In e laws hen ifc y ad- ono voice ty on namo tuted ment, pro- nt of all crime and entitled to the consideration and respect of the •world for the very deed for which they stand now accused. They are engaged in a murderous conflict ; every individual in that unfortunate community is engaged in it as one of cither party, and stands in deadly enmity to every man of the opposite jiarty, and in this strife the injuries done hy an individual of one party to their enemies must be presumed and held to be an injury of the party, unless the contrary appears. Vattel, p. 424 — " A civil war breaks the bands of society and government, or at least suspends their force and cifcct ; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be con- sidered as thenceforward constituting, at least for a time, two sepa- rate bodies, two distinct societies. Thouj^h one of the parties may have been to blame in breaking the unity of the State and resisting the lawful authority, they are not the less divided in fact. Be- sides, who shall judge them, who shall pronounce on which side the right or the wrong ? On earth they have no common superior ; they stand, therefore, in precisely the same predicament as two nations who engage in a contest, and, being unable to come to an agreement, have recourse to arms." The prisoners are Southerners, Confederates, enemies of the North ; they were actively engaged in Chicago about the great object for which their country is suft'er- ing, and for Avhich they so heroically contend. They were conspir- ing against their enemies in their midst, on behalf of their country, at the risk of their lives. After attempting one i)lan, they decided, under direct and positive orders from their Government, to make an attack upon some open town in the enemy's country, to burn and plunder it. Their leader, Bennett 11. Young, had his commis- sion ; they were soldiers ; they obeyed : the work offered was hostility to their enemies ; they undertook it with ])leasure. The sole end and motive of their action, was their country's good — the ruin and destruction of their enemies. Can it be doubted for a moment that they were actuated by any other feeling but that which animates the South against the North, that it was the spirit of patriotism or rebellion, as you may choose to call it, which ])rompted them and carried them on to the execution of this plan ? No ; the evidence leaves no doubt on this subject. It is unquestionably a part of the great contest carried on between the North and the South, a part, an incident in this bloody drama, and tending to the same result. It is unmistakably a ])olitical act. The circumstances, the nature of the deed, the character of the individuals, their organization, their admirable [)lan and its very result, ])rove it to be a well devised and well executed political movement. The movement was ordered, the money was furnished by the well known agents of the Confede- m '''■ - ). I' w 1 M. ■ II Vf:^'yy r :;t ■m 252 rate Government. The political character of the deed, or its motive, such as established in evidence, disprove all criminality. It is an unquestionable rule of international law that all the citizens of a belligerent State are enemies of all the citizens of the other ; and it is also a rule of law, that civil war created, during its exist- ence, that same division which exists between two separate nations. Acts of hostility between the belligerents, acts of aggression against parties in civil war, are not crimes. They are deficient in that necessary element of all crime, the intent to injure any particular individual. There was none of that animus which was necessary to the constitution of a criminal offence ; because the action in such cases was not directed against the individual, but against the enemy. In the present case, it is evident that it was not the pro- perty of Mr. Breck, or Mr. Sowlcs, or Mr, Bishop the prisoners intended to destroy and plunder, but the property of the enemy, of the Yankees. There is no principle more undoubted than that the intent alone can create crime ; and as authorities from the United States must be more readily accepted to establish any point of law, I would refer to Bishop, 1, §227 : "There is only one criterion by which the guilt of men is to bo tested. It is whether the mind is criminal. Criminal laws relate only to crime. And neither in philosophical speculation, por in religious or moral senti- ment, would any people in any age allow that a man should be deemed guilty unless his mind were so. It is, therefore, a prin- ciple of our legal system, as probably of every other, that the essence of an oflence is the wrongful intent, without which it cannot exist. Wo find this doctrine laid down not only in the adjudged cases, but in various ancient maxims, such a? ' actus nonfacit reum^ nisi mens sit rca ;^ the act itself does not make a man guilty, unless his intention were so. It cannot be robbery, because open war exists between the two parties, and the law of nations does not regard an act of aggression by the subjects of the revolted country against the ])ersons or property of the parent country as murder or robbery ; it is a political or military act." 1 Phillimore, p. 137 : " A doclaration of war, which enjoins the subjects at largo to attack the enemy's subjects, implies a general order. If the unauthorized subject carry on war or make captures it may be an offence against the sovereignty of his own nation, but it is not a violation of inter- national law." Hall' ck, a major-general in the United States, p. 44G : " It has already been stated that war, when duly declared, or officially recognized, makes legal enemies of all the individual mem- bers of the hostile States, that it also extends to property, and gives to one belligerent the right to deprive the other of every thing which might add to his strength and enable him to carry on hostili- ties." Bynkershoek, p. 4 : "A nation which has injured another is or its a prin- lat the cannot |ljudgcd t reum, guilty, e open ocs not ountry dor or , 137: attack lorized ij^ainst inter- |ites, p. red, or mcm- |1 gives thing liostili- ther is 253 considered, with every thing that belongs to it, as being confiscated to the nation that has received the injury. To carry that confisca- tion into effect may certainly be the object of the war, if the injured nation thinks projier ; nor is the war to cease as soon as she has received a repavi^tion or equivalent to the injury suffered. The whole common'.Noaii I and all the persons, as well as the things contained within it belongs to the sovereign with whom they are at Avar, and in the same manner as we may seize upon the ])erson and upon all the projierty of our debtor, so a sovereign in war may seize the whole of the subjects and dominions of his enemy." Sup- posing even the parties might have been in error as to their right to act as they did ; supposing they had acted without proper authority, or beyond the ordinary rules of war ; that they had been deceived as to their right and duty of obeying the orders of their Government, still if they supposed they were acting upon proper grounds and v>-ith sufificient authority, they would, even according to American criminal law, be held innocent ; there would be no crime. 1 Bishop, § 242, lays down the law in these terms : " The legal rule is clearly enunciated by Baron Parke. The guilt of the accused must depend on the circumstances as they appear to him. Here the rule is, that if one has reasonable cause to believe the existence of the facts which excuse the homicide, or, to express the idea accurately, if without his fault or carelessness he does believe in them, he is legally innocent, though it turns out that he was mis- taken." Is there to be discovered in this case any of that animus furandi, which was indispensable for the constitution of criminal offence ? We see nothing in the evidence to indicate it. The motive, the impelling power, was patriotism. In no other country, perhaps, but in the Southern Confederacy, would twenty young men be found who would be prejiared to risk their lives, to offer them to a certain almost ignominious death in taking possession of a town of four thousand inhabitants. All idea of personal profit, private plunder is excluded by the facts. Moreover, the offence must be one that would be so qualified by the tribunals of the country demanding the extradition ; it must be a crime according to their legal definition, and extradition can be demanded only by the party to the Treaty. The question will naturally arise, does the party to the Treaty, the association of States, still exist ? Is it not broken de facto and de jure in the eyes of England, who recognises them as two distinct belligerent nations ? But admitting that the Treaty remains unimpaired, it will not be denied that the offence must be one Avhich all the United States — South Carolina as well as Vermont — should acknowledge as such, and would so be considered by all the tribunals of all and each State. The crime must be one universally admitted as such by all the .{■ t ; i ■ J ',.1 '■:l ^.|i: . ^.^^, ■ Ml^i^" 254 United States parties to the Treaty, not solely by the definition of one or ten States. Would the parties be tried or held as felons in their States, in Richmond, in South Carolina, Georgia, Tennessee, or in any of the Confederate States, who were parties to this Treaty ? Can it be presumed that they demand the extradition of these men ? Assuredly not. The contrary is the case. Can, then, our Govern- ment and our Courts, in just'ce, as a fair interpretation of this com- pact, yield to the exasperated feelings of a section, however large, however powerful, of the contracting parties, who choose to stamp an act as criminal for the sole purpose of using the Treaty as an engine of oppression against the other section. Every bad case founded on wrong principles and bad law is prolific of dilemmas. The United States contend, and this Court has decided, that the Treaty in question not only covers offences against the United States eo nomine, but offences against each State. We arc bound to acquiesce in that decision, but it inevitably leads to one of two con- clusions — first, that the offences so enumerated are to be those crimes as defined by common law ; or secondly, those defined by the Statutes of each separate State. That statutory crimes are nr intended to be included, the Executive of the different States have repeatedly declared. It is universally held, that by the Const 'tution, statutory offences are not to be included for extradition between themselves. No statute of Vermont, therefore, concerning rob])ery or murder, affects this case. Vermont might make stealing of a horse murder. In the Southern States stealing of a negro is capital robbery. Duelling is allowed in some States ; in others it is made murder hy statute. The slave trade is defined as piracy by some laws. The offences enumerated in the Treaty, for which extradition alone can be granted, are arson, robbery, forgery, piracy, m\u"der, as defined by common law in all and every State. The question is, therefore, repeated, whether by the common law of Florida, Carolina, and all the Confederate States controlled by the state of war now existing, the offences against the prisoners would be admitted as such. The political character of the deed would be of itself sufficient to dispose of the present application, and the case of the prisoners might rest surely on this ground alone ; but independently of this reason the military character of the prisoners and of the deed, would also be a complete answer to the demand for their extradition. It is estab- lished beyond a doubt, that the prisoners were soldiers regularly enlisted and in the active service of the Confederate States at war with the United States. Great Britain and all the civilized world acknowledge them as belligerents. The moment it is proved that these men were regular soldiers of the Southern Confederacy, duly commissioned, organized and acting with the sanction of their Gov- ernment, there ends all question as to the application of the statute. 255 :i|t jient to Is might [sou the Iso be a cstab- IjTiilarly at war |1 workl )d that r, duly [r Gov- ttatutc. There can be no possible violation of the municipal laws of the enemy by soldiers of the belligerent. They owe no obedience to the enemy's laws, because they owe the State none. They are not bound to respect the lives of thei • enemies, the property of the enemy ; they are engaged to wage war, to kill, and to destroy property. Rules have been established to regulate hostilities in the conduct of the war, but these rules belong not to the miuiicipal code ; their infractions are left and appertain exclusively to the military authorities and to the military code. An offence of this kind cannot be construed into a crime defined and regulated by the statute of Vermont. The law under Avhich they come is found in that chapter of international law devoted to war. 2 Burlamaqui, p. 192 : " Most nations have fixed no bounds to the rights which the laws of nature give us to act against an enemy ; and the truth is, it is very difficult to determine precisely how far it is proper to extend acts of hostility, even in the most legitimate wars, in defence of our ])crsons, or for the reparation of damages, or for obtaining caution for the future, especially as those who engage in war, give each other, by a kind of tacit agreement, an entire liberty to mode- rate or augment the violence of arms, and to exercise all acts of hostility, as each shall think proper. And here it is to be observed, that though generals usually punish their soldiers, who have carried acts of hostilty beyond the orders prescribed ; yet this is not because they suppose the enemy is injured, but because it is neces- sary the general's orders should be obeyed, and that military disci- pline should be strictly observed. It is also in consequence of these principles, that those who, in a just and solemn war, have pushed slaughter and plunder beyond what the law of nature permits, are not generally looked upon as murderers or robbers, nor punished as such. The custom of nations is to leave this point to the conscience of the persons engaged in a war rather than involve themselves in troublesome broils, by taking upon them to condemn either party. It may be even said, that this custom of nations is founded on the principles of the law of nature. Let us suppose that in the inde- pendence of the state of nature, thirty heads of families, inhal)itant3 of the same country, should have entered into a league to attack or repulse a, body composed of other heads of families. I say, that neither during that war, nor after it is finished, those of the same country, or elsewhere, who had not joined the league on either side, ought or could punish, as murderers or robbers, any of the two parties who should happen to fall into their hands. They could not do it during the war, for that would be espousing the quarrel of one of the parties ; And since they continued neuter in the beginning, they had clearly renounced the right of interfering with what should pass in the war. Much less could they intermeddle after the war ^1 111 !rli i »i^' j&i ■f 1 V* 'tN ;!■ ' Hi n' fjM I J ; ' M i Ih ' pli^ h 256 is over, because, as it could not be ended without some accommo- dation or treaty of peace, the parties concerned were reciprocally discharged from all the evils they had done to each other. The good of society also requires that we should follow these maxims. For if those who continued neuter had still been authorized to take cognizance of the acts of hostility, exercised in a foreign war, and consequently to punish such as they believed to have committed any injustice, and to take up arms on that account ; instead of ono war several might have arisen, and proved a source of broils and troubles. The more wars became frequent, the more necessary it was for the tranquillity of mankind not to espouse rashly other peo- ple's quarrels. The establishment of civil societies only rendered the practice of those rules more necessary ; because acts of hostility then became, if not more frequent, at least more extensive, and attended with a greater number of evils. Lastly, it is to be observed, that all acts of hostility which can be lawfully committed against an enemy, may be exercised either in his territories, or in ours ; in places subject to no jurisdiction, or at sea. Vattel, p. 293 : " The sovereign is the real author of war, which is carried on in his name and by his order. The troops, officers, soldiers, and, in general, all those by whose agency the sovereign makes war, are only instruments in his hands. They execute his will and not their wn." If the prisoners as soldiers had committed acts of violence unauthorised by their superiors, they were responsible to them ; if the acts were beyond the ordinary outrages sanctioned by the usages of war, they might be made accountable to the enemy, if captured and tried by military court-martial and treated accord- ingly, but the offence could never be converted into one against the municipal laws. When Beal was taken prisoner in the United States, although a companion, a soldier of Burley, who has been extradited for robbery, they tried him by court-martial, and they sentenced and executed him as a soldier, for an offence against the laws of war. The printed directions and 3gulations for the United States' armies contain special provisions for cases of this kind, and provo conclusively that in the opinion of the United States authori- ties! tnemselves, no other law is applicable than the military code. Such offences fall exclusively within military jurisdiction and military law, who for certain violations of the rules of war can de- prive soldiers of the immunity attaching to prisoners of war. No. 84 of these regulations states : '' Armed prowlers, by what- ever names they may be called, or persons of the enemy's territory who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegra[)h wires, are not entitled to the privileges of the prisoners of war." Can on in ,nd, in ir, are )t their olence m ; if y the my, if ccord- ist the Jnited been they st the nited , and thori- code. and ,n de- Iwhat- ritory )3e of lor of Jvires, Can 257 any cxamj^le be found in tlic history of any war of a soldier taken in the open fact of a murder or robbery of the enemy, and left or delivered over to the enemy for trial before the civil covn-ts of the country against which he was engaged in war ? When Wellington was in Spain, in the country of an ally, he did not acknowledge oven then the civil jurisdiction over his soldiers, committing depre- dations expressly prohibited by his orders ; he did not send them to be tried by the Spanish courts of justice, but he ordered them to be tried by court-martial, and they were sentenced to be Imng by their own military courts. In the present case the acts were done under a special commission. Whenever a soldier has a com- mission, he becomes an instrument of war, — the presumed authori- iied agent and representative of the belligerent power for every act he may do, for every injury he can inflict. His conduct is fully coveied by his commission. Chancellor Kent, a most eminent Ameri- can judge, 1st. vol. of his Commentaries, writing on international law, p. 94, 9(3, says : " Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other : yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy. If subjects confine themselves to simple defence, they are to be considered as acting under the presumed order of the state, and are entitled to be treated by the adversary as lawful enemies ; and the captures which they make in such a case, are allowed to be lawful prize. But they cannot engage in offensive hostilities without the express permission of their sovereign ; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as lawless banditti, not entitled to the protection of the mitigated rules of modern warfare. If they depredate upon the enemy without a commission, they act upon their peril, and are liable to be punished by their own sovereign ; but the enemy are not warranted to con- sider them as criminals , and as respects the enemy, they violate no rights by capture. Such hostilities, without a commission are, however, conti-ary to usage and exceedingly irregular and danger- ous ; and they would probably expose the party to the unchecked severity of the enemy, but they arc not acts of piracy." 1 J'hih- more, h\)'6 : " So long as these vessels (private ships) sail under a national commission, and within the terms of that commission, it is quite clear that they are not and never have been considered as pirates by international law. And even if they exceed the limits of their commission, unwarrantable acts of violence, if no piratical hitention can be proved against them, they are responsible to, and punishable by, the state alone from which their commission has issued." Wlieaton, 247 : " The officers and crew of an armed vessel, commissioned against one nation and depredating upon K f ■■ ti n M >[ ill ii . r I- m.i v:i . iM ♦: « 1 '-H ' ^ ^nlfl ■ W r^U 1 ; i , .1 ' ' ■ ' i' 1*1. ■ ^ I ' -i • ■ ■! = 5 'i'-t 25?^ another, are not liable to be treated as pirates in thus exceedinp; their authority. The state by -whom the commission is granted being responsible to other nations for what is done by its commi&- sioned cruisers, has the exclusive junsdiction to try and punish all oiFcnces committed under color of its authority." The same author in a note, p. 248 : " But in the case of one having a com- mission from a party to a recognized civil war, no irregularity as to acts done jiii'e belli, will make him a pirate. He stands in the same position as if he held a commission from an established govern- ment, so far at least as regards all the world, except the other party to the contest. His acts may be unlawful when measured by the law of nations or by treaty stipulations. The individuals concerned in them may be treated as trespassers ; and the nation to which they belong may be held responsible by the United States ; ))ut the parties concerned are not pirates."' The same author, p. ♦)26 : " The effect of a state of war, lawfully declared to exist, is to place all the siilijects of each belligerent power in a state of mutual hostility. The usage of nations has modified this maxim, by legalizing such acts of hostility only as are committed by those who are authorized by the express or implied command of the state. Such are regularly commissioned naval and military forces." The same doctrine is laid down in Halleck, a general officei in the l.^nited States' service. In his book on International Law, p. 306 and 38G, he says : " That the sovereign alone is to be held guilty for the acts of unlawful war ; that he alone is bound to repair the injuries, and not those who act under his authority." No principle seems to be more clearly admitted by all the best American au- thorities, and all writers on international law, that the soldier's commission is a complete justification and protection for all his acts ; that he cannot be made responsible, except to his state alone, for any unwarrantable act of violence ; that no excess of violence car^ give to the municipal tribunals any jurisdiction over him. No one has the right, because none has the means, to judge him, to convict him of the crime of abserice of authority on the part of his govern- ment. In this case the acts were done in direct obedience to the authority of superiors, who, by their commission, delegated to their t>fficer the right of waging war, destroying the enemy, and devas- tating the country. The leader of the party had a special com- mission for this particular object. To him was entrusted the direction of the whole plan. He stood, with i-espect to its execu- tion, in the position of a general invested with all the authority of the state with whom alone rested the responsibility of the outrage. The mode of fulfilling such orders was a matter for the conscience only of the ofiicer and for the authorities ordering them. The Americans complaincfl bitterly ; and we finurpose or another, it was esseutiallv a military act. Monday, March :2nd. I have shown that by tlie interpretation universally given, ana by positive declarations emanating from the highest authorities of both contracting parties to the treaty, that political oftcnces, or any crime arising from wars or intestine commotions, cannot come within the treaty, and I have established that the acts imputed to the pri- soners were acts of that class ; that moreover, it was an oftenee committed by soldiers, therefore, a military not a civil or municipal offence ; that the commission of the soldier was alone re([uired to establish his character, and was complete justification to protect him from extradition. Before closing my remarks on this point, T will refer to two important documents which have come to light since the last sitting of the Court. The first is the despatch of Lord John Ru.ssell, in answer to Mr. Adams' complaint of the proceed- ings of the Court of Bermuda, who discharged parties accused of piracy by the I'nited States (jovernment for having taken posses- sion of the United States' vessel Roanoke, after going on board at Havana as passengers, and destroying her. Lord John Russell says : " The other complaint is, that certain passengers proceeding from Havana in the Laiited States vessel Roanoke, when five hours from Havana on tlieir voyage, rose on the captain, made themselve> masters of the vessel, destroyed her. and were afterwards permitted to land on the island of Bermuda. The answer to the second complaint is : That the person arrested for a supposed piratical act produced a commission, authorizing that act as an operation of ■i ■ tr .! A % 2G0 H '^ ' 5i,r^ M^ ■If. ? 1^ 1 ■■)'» m 1:. V it 3ry but tor a political and military offence, the violation of the of war. The char^'os are si)cci{ied as follows : ■war from the Government of the so-called Confodorato States, which arc acknowlcdi^cd hy her Majesty's Government to [wsscas all bel- ligerent rights." The statement made in this despatch affords the most conclusive authority in tavor of the prisoners, to establish the principle that a commission from a belligerent is all that can be required to justify any act of hostility against an enemy. The act alluded to in this despatch, certainly, affords good subject for criti- cism by the rules of war. Secretly and by disguise entering a ship as passengers, and then rising on the crew, taking possession of hor and destroying her, might be (luestioncd as a legitimate or regular act of war, sanctioned by modern usage, but this question could not be raised after the })roduction of the connnission ; the only justifi- cation required was the commission. The other and a most impor- tant document is the report of the trial of the unfortunate man Beall, who was acting under the orders of Burley, who was extra- dited for robbery i»y the judiciary of Upper Canada, although the offence was identically the same as that of Beall, his subordinate. Beall was brought before a court-martial and tried there, not for robbci^ rules of war. The charges are si)eci{iec " Specification 1. — In this, that John Y. Beall, a citizen of the insurgent State of Virginia, did on or about the 19th day of Sep- tember, 18G4, at or near Kelly's Island, in the State of Ohio, without lawful authority, and by force of arms, seize and capture the steamboat Philo Parsons. " Specification 2. — In this, that John Y. Beall, a citizen of the insurgent ^tate of Virginia, did on or about Iha 19th day of Sep- tember, 18G4, at or near middle Bass Island, ia the State of Ohio, without lawful authority, and by force of arms, seize, capture and yink the steamboat Island Queen." Upon this accusation, the United States authorities, through the Judge Advocate, declared that this very offence, for which they obtained the extradition of Burley, was a political and a military offence. They positively declared that the offence is not a civil or municipal one, that it cannot be the subject matter of trial by ordi- nary Courts of Justice. Here are his very words : " I was wiUing to admit that Beall was a rebel oOficcr, and that " all he did was authorized by Mr. Davis ; because in my view of the case, all that was done by the accused, being in violation of the laws of war, no commission, command or manifesto could jus- tify his acts. " It is true, that if these enormities had been committed in time of peace, or by ordinary citizens, rogues and desparadoes, they •would have been more municipal or civil offences, and the perpo- " trators would be amenable to the civil Courts and entitled to the u ii that iV( of jon of [l jus- time they (erpe- the 261 " trial by jury. But the accused in not prosecuted for a civil " oftencc. lie is by the tlicory of this case a military offender, a '' violator of tho laws of war. He refers to a (juotatioii of Jlolt's '' Di«i;c8t, p. 70, to show that murder, which is a civil ofteiice under " ordinary circumstances, may and docs, in time of war, when coni- " mitted for disloyal and treasonable purposes, become a military offence, and may then be tried by a Tuilitary Court, without the in- terposition of a jury. Tn time of war, the offender bein<^ a rebel officer in disguise, the (piestion of intent, the qito aninio, is very easily determined. In this case it is very clear, that personal advantaj^o was not the motive that led to tho seizure of the steamboats, or the attempt on the r;iilroad. To destroy tin- '' commerce of the lakes was one of the o))jects avowed ))y the raid- '" in;^ party on Lake Erie ; to inflict great injury upon '^wixt nimi- " bers of their Yankee enemies, and not the crazy expectation that '' a gan;!; of fi'^e rebels coidd overcome and plunder a thousand " passengers, was the purpose of the railroad attack. The acts " charged and specified, being military offences are triable by a " military Coiirt, and the accused has no constitutional right to a '" jury trial." This trial and the sentence against the unfortunate accused which was carried into effect, is the denial by the American autho- rities themselves of their right to demand and to ol)tain the extra- dition of Turloy, or of the prisoners in this case. They admit that it was a political offence, that it was not inspired by the desire of private plunder, that it was solely and exclusively a deviation from the usages of war, an offence to be dealt with by the military tribu- nals. If such was the case for Burley and lleaU, can it be doubted that the same principles shoiUd ap])ly to the ])risoners ? I shall again on this point refer to the regulations of the United States' armies — sanctioned and ordered by the (Jlovernment : Page 12, No. 40 : " There exists no law or body of authoritative '' rules of action between hostile armies, except that branch of tin- " law of nature and nations, which is called the law and usages of '' war on land." No. 41 : " All municipal law of the ground on '' which the armies stand, or of the C(mntries to which they belong, " is silent and of no effect between armies in the field." Offenders against these usages of war are tried bv military courts of the enemy ; they may bo sentenced, they may be himg or shot, and justly too, according to the laws of war, and nevertheless they may be morally innocent. The military spy who is found in the tines; the scouts who are ordered to go in disguise through the lines of the enemy to observe its movements or to destroy a telegraph ; the messenger who, for the safety of an army, in obedience to tlie orders of his officers goes in disguise through tho enemy's lines, t*; i; 4 «,; J[| ^1 t •■ i .. I t I • i •I ' \ ! " i ■f] iA. ■ 2&2 r' I ■ .'4- '::■ II*' • ■ I il convey a message to another division, if lound within his hues, the enemy is justifiable in trying them and exoeuting the , the victims are devoted, sometimes the most noble soldiers. '' ;" rr'» in conscience, in the eyes of the world, and befort^ (Jod, / I'rom guilt of any kind. The ca^e of the mdbrtunate Major Andre is a striking illusti.uion of this. It is the same ])rinci|)le in this case. It was, it might have been thought by the Confederate Government of great political moment, and dictated by the best reasons, to order this raid in St. Albans. Being unable to effect it by an army sufficiently strong to run over the whole territory as Morgan attempted, they call upon soldiers to do it by artifice, by reaching that spot in disguise and then to levy the contribution, or jilunder and destroy. They did so b(»ldly and •>penly in broad day light. They were liable, if taken, to be shot on the s[)ot ; little chance could they have of escape. If they had been taken in the execution of these orders by the enemy, and tried and condemned by a military (.'ourt, would they not have been innocent — could thev not feci in their conscience that thcv were not criminals ? It has been said, and it will be probably repeated here, that thi.^ is not a proceeding sanctioned by the law of modern warfare. Admitting it was a violation of the usages of war, is there accord- ing to the laws of nations, a tribunal in any country entrusted with the power of judging nations and condemnhig their policy '( If they deem it expedient to deviate from the rules prescribed by justice and humanity, they are not accountable to other nations their equals ; for independent nations acknowledge no superior on earth. This is an elementary principle of the law of nations. The 'tnly question therefore can be whether it is an hostile act com- mitted by an enemy against an enemy, or by the soldiers of one bel- ligerent against the enemy. Taking it to be an unjustifiable violar tion of the most unquestionable rules of warfare, stili it would be an act of war ; irregular, if you choose, but nevertheless an act of war. It might be a violation of the rules of war, but it could not be an infraction of the statute of Vermont. It might be censurable, politically immoral, but not criminal in the civil or municipal sense of the word. It never could be defined murder or robbery, contemplated by the treaty. I contend how- ever that the conduct of the prisoners is perfectly justifiable if tested by the principles of common and ordinary warfare. Supposing these twenty men to have been detached from the lines, for the special purpose of taking and plundering any of the small towns on the Potomac, to levy contribution by obtaining deli- very of all the funds in the possession of the banks, or to retaliate by plundering and burning it, and let us suppose they had suc- ceeded in doing so. AVhat objection could be made ? no iniquity, a the fthe deli- iliate 8UC- uity, no violation of the hi\Ns of war wouKl l)c (hscovcretl. ►Supporfiu;:; these twenty men wonM huvo lifcn (UtjKlicd from Mor;j;iin\s coui- rnand, wlien he eflfeeted his raid in Kentucky, and ;;<»in;^ at a i^reat distance from the main hody, wouhl have attempted the .same in Pennsylvania, would not such a feat have been considorcd a,s hold and daring, would a newspaiicr have dreamt of makiii;:; an outcry in support of the ju-inciples <»f modern civilized warlart' '.' Would the parties have heen styled by them nmrdcrers and robbers '."' Supposing in such an instance they would have been captured with uheir plunder, would they have been made prisoners of war or been dealt with as criminals '.' Jleniove the scene of aetiiai, extend the distance, multiply the dlHiculties ; let these men ,l:o in disguise through the whole breadth (jf the enemy's territory, back to the Canadian frontier, to St. Albans ; let them be bold enough to attempt such a jirojeet there with twenty men and carry it out, will the distance or the greater ditficulties alter the nature of the case? Will the lirst be according to the rules of war, and the last a violation of them ? Will the parties engaged in the first exjicdi- tions be brave soldiers, heroes, and those concerned in the last, murderers and robbers ': On what ground'.' Wliere is the dilVer- once in the supjwsed occurrences and the one complained of'.' What constitutes the criminality which would so alter and pervert the one so as to change a laudable act into a most atrocious and revolting crime ': Is it because it was so far from the focus of the war. Docs any rule exist in war whereby certain portions of the enemy's territory are exempt from hostilities '.' AVc have heard of modern usages of war, but this is certainly the most recent enactment ; and probably the learned Counsel for the appli- cants will furnish us with the text laid by some writers on the subject. If such a rule exidts, the morahty of a deed would depend upon its geographical situation. If a thing is done on the Rappahan- nock, it is right and legitimate ; but as you go northwards, the morality may decrease ; it altogether changes and is altered, so, that when you reach near the forty-fifth degree of latitude north, then it is converted into an absolute crime. It must be admitted that the ignorance of this rule of war might be invoked, at least, as a good excuse to the parties infringing it, to free themselves from all criminal intention in the matter. It will be said that they violated neutral territory. Admitting that they did, who has a right to allege it or to complain ? Will that change the nature, the character of the deed';' It may be a separate, independent offence ; but the violation of neutrality laws cannot certainly convert an act otherwise non-criminal into a crime. If the parties went there as soldiers or as engaged in this '■ i'i I i ■ i ■ ^ V I, ft, I' , I fM t m\ It 'I 264 M m »j 1. I'l '. |!^ li' If L» • * ■ I •*. ■ m , •■,,,"■ ' 'I. •■Ai civil war, will the fact of conimittinp; a trespass on neutral ground change their intent, deprive them of their character of soldiers or partizans and transform them into common criminals ? It would be a new principle of modem warfare that a trespass on neutral terri- tory would convert an act of war into a crime. The judge is not called upon to decide a breach of the neutrality laws, but upon the criminality, the criminal intent of the prisoners. lie is called to satisfy himself that an offence against the municipal lawS' of the United States has been perpetrated by them. If they had violated the territory of Great Britain, they were amenable to the tribunals of the country, and responsible to them alone, and not to the United States. We can, however, dispute the violation of the neutrality. Two facts only have been established from which any such presumption might arise, — Young's interview with Mr. Clay at St. Catherines, and the travelling of five of the soldiers engaged in this business through Canada. Besides this, there is nothing in the evidence to constitute a violation of the neutrality. How will the transmission of orders by a Government agent to one of the officers of that Government, supposing it were to direct his movements in a hostile expedition, of itself constitute a violation ot neutrality ? If such a principle was affirmed, then England could not act through her ambassadors or her navy officers, when in neutral ground or neutral ports, to convey orders or instructions to those directly engaged in hostilities. The correspondence, the transmission of orders, would be declared a breach of neutrality. The fjuiet juissage of unarmed soldiers never did, according to the laws of nations, constitute, even with the intent and object to reach the enemy's territory, a violation of neutrality. On the contrary, the peaceful transit of troops is recognized by the law of nations, and both belligerents can exercise it. In this Avar the United States have exercised such right in Canada. It is proved, on the other hai.d, that the whole phin was arranged in hostile terri- tory. The enlistment and the preparation of the scheme w;is sot- tied upon in Chicago. The act, however, as to its criminality 'vith respect to the subject-matter of the treaty, must necessarily be examined, independent of any foreign or collateral circumstaucei, :md, considered in this light, no criminality whatever can attach tc It. It is essentially a hostile act, an act of war. Biulamaqui defines war to be the state of those who try to deter- mine their diffisrcnces by the ways of force. Wheaton, p. 586 — " The rights of war in respect to the enemy are to be measured by the objects of the war. strictly speaking, it is tlie right of using every means necessary to accomplish the end." 2 Kluber, p. 18 — " Les droits de la bonne cause (which must be held, by the neu- trals, that of each of the belligerents) envers la partie qui fait une 265 18 leu- guerre injuate sont illimitea. II n'y a done aucun moyen, (juelijui violent qu'il soit quo Tcnnemi no puisse employer." Bynkershoek. p. 2 and 4, ^oes even further, and lays down the rule in al)Solut< terms, that the enemy can nse every means possiMc a>^aini^t his enemy, admitting that there is no limit to the right of injuring tho enemy. Vattel, p. 84()-;}00 ; 1 Ilautefeuille des Neutren, p. 132, 138, loO ; 2 Kluber, p. 2\, 58, 56. All the writer>^ on tho subject admit that such is the original and the actual ahsolutr right. Civilization and the well-understood interests of all com- munities have prescribed moderation in the exercise of this right, ;uid established exceptions to this absolute principle of the law of war, by sanctioning certain ndes which have generally been adopted by common consent and common practice, without however abrogat- ing the primitive and original right, which still remains in tlio eminent domain of every nation to be exercised, when, in the judgnieut and (jonsciencc of the constituted authorities, its application may be deemed necessary. The right to do your enemy all the injiirv possible still subsists as the fundamental principle of war. " If." says Paley, " the cause and end of war be justifiable, all the means that appear necessary to the end arc justifiable also. This is the principle which defends those extremities to which the violence of war usually proceeds ; for since the war is a contest by ftux'o between parties who acknowledge no common superior, and, since it includes not in its idea the stipposition of any convention which should place limits to the operations of force, it has niiturally no )x)undary but that in which force terminates, — the destruction of the life against which the force is directed.'' Every writer upon war lays down the same principle as the illustrious English ])hiloso- pher and divine whom I have just (juoted. War is licensed nnu'der, pillage, plunder, devastation, and destruction. Humanity may shudder, philosophy may revolt, iinu seek to soften and relax tho rigor of this fundoraental axiom of the laws of nations. IJeyond and outside of this principle of unmitigated and unrestrained hos- tility, there are no laws of war, except those implanted in tho breasts of the belligerents by the Cr'\ator. All the ameliorations of this great principle should be styled rules and usages of wai-. superinduced by the teachings of wise and humane authors, and encouraged by the practice of the greatest and best generals. T'hero is no rule of war which makes exemption of private pro{)erty from capture, plunder, or destruction. Soldiers are considered by all nations as'mere instruments of war, passive mechanical agents of a superior moving power, which alone is responsible for their actions. Every act of hostility committed by them must be considered as an act of V?Rr unless disapproved of and condemned by the nation to whom t^« V belong. The parties to this application have acknowledged the i I ■ 1 26U I Ml ,^^ pr isouer.s its thoir enemies, and as soldiers actiu;i uii l»ehuU' of the N ♦ ■'I Confedenite States. Tlie parties in this case themselves have <(ualificd this very aet of the prisoners as an aet of \v ir. The banks did so by a public notice given to the world, and which is proved in this ease, oiferin.ir; a i-eward of 'i'lOjOOO for the appre- liension of the armed raiders win* had plundered their insti- tutions, •* ait anncd bdud of fdidii's.'' Mr. ]iishop, the wit- ness for the prosecution, and one of the parties avIio published this notice, says, " I have seen the term raid used pretty often duriuL^ the war. 1 luiderstand thai raiding means the march of an army into the enemy's country ; by array, 1 mean a large or u small nimiber of soldiers."' So Mr. Bisliop admits that the ))risonei-s were (Jonfederate soldiers, and that they came as such into St. Albans. The definition of the word '" raid,'" given by Mr. Bishop, eori-esponds with that of ;ill the American dictionaries. Kaid is defined, a hostile incursion. In (leneral Dix's proclama- tion, which is also })roduced in evidence, the prisoners are therein styled rebel marauder s. The Tresident of the United States I'cvoked the latter portion only of Ucneral Dix's order, whereby the latter invited every American commander on the frontier to cress the boundaries, and leaves the first ])ortion subsisting, which contained the distinct admission that the ])risoners were rebel ma- rauders. Tliis was a positive admission by both the military and executive authorities of the United States, that the parties engaged in this act were military men, that they were rebels, and that their ":>bject was a politico-military one ; which Avas in direct opposition to the demand now made for extradition. So, the parties injured, the military authorities and the executive of the United States, have ad- mitted that the accused were rebel soldiers, and that they committed the outrage as such. The best proof of the politico-military nature and character of the deed of the prisoners is the very issue raised in this case. At every step, at every stage, your J'lionor is called upon to apply a principle of international law. It is tlie only mea- sure by which the facts can be tested. The prisoners assert their immunity as soldiers ; they rely for their justification on the law of war, and contend that their act is part of the hostilities of their country against their enemies. The applicants on thoir side will, no doubt, contend that the prisoners violated the rules of war regu- lating the mode of carrying on hostilities, i^o, it becomes entirely a question of transgression of the usages of war, even in the opinion of the applicants themselves. The laws of Avar are part of the international laws ; every question of international law on this sub- ject is political. To ascertain the criminahty, to be satisfied of it, the judge must first decide that a violation of those laws has been committed : he must sit on judgment upon nations, condemn the 267 ■'1 mea- their aw of their will. one to whom those soldiers belonged, and whose agents they were, and after pronouncing the illegality of the act, deprive them of the immunity granted to soldiers by all civilized communities hi the world, and stamp them as common robbers and murderers. Taking for granted that the Court can take cognizance of the laws of war, and decide upon the right or wrong of a cause adopted by one of the belligerents, then the party so held to account would be entitled to offer his justilication on the ground of retaliation. The undisputed and uncontradicted rules of war, under their mildest form, allow devastation and }>! under of inoffensive and unarmed citizens for retaliatioii. All the modern rules of warfare are often suspended to give full scope to the most severe ndes, when necessity or even expediency jequire. If justifiable in any case, who shall judge of the right '.'' The prisoners in such a case would be entitled to offer their justification, on the plea of retaliation for worse outrages committed in their country by Federal troops. The Confederate Government assert their right to retaliation ; thoy contend that the Federal soldiers have committed o\itrages unparalleled in any war. If 80, tlie deed complained of is and must be considered free from all censure, liut the judge cannot make or allow this investigation. This evidence has been properly excluded, because the judge cannot ransack history to find out the guilty nation, to determine whethei- retaliation and retortion ought to have been made. Therefore, it is, that every where, when a deed has been committed by regular commissioned sddio's. every nation and every tribunal of every nation are bound to presume that some good reason existed for it, and accept it as an act of war. If the Federal authorities deem it an outrage, a gross violation of the ndes of war, let them take to account the Confederate authorities, and ask explanation from them, as they did of the British Government in 1812 ; and if they do not obtain satisfaction, let them retaliate. Until thev have obtained explanations, they are bound to consider the acts of their enemy':^ soldiers as acts of their enemy. In this case there was something even niore directly showing the political character of the deed. Taking for instance the effect that this outrage had had in the North ; the fact that the whole civil and military authorities were incensed, and almost threatened tc^ wage war on (Jreat ]]ritaiu ; did this not show that it was a well concocted eiTort to bring succor to those who ])lanned it ; that it would ha^e the effect of calling back part of the army from the front for the protection of the frontier? Was this not a yery important political act on the part of the South? But this was a point on which it was unnecessary to dwell. The political and military character of the offence had been established beyond a doubt. It was in every way an act of war even if it was not in accordance with the common usages. .k f; ill. ■':[ ■ \ i s ■ i i • 4' •» r ' pi '■' m 268 Independently of the reasons ^iven to refuse extradition on tho ground.? of the political and military eliaraeter of the niVence, the fact that this expedition was directly ordered hy the Confederate! authorities affords complete justification for whatever the prisoners have done. It is proved that the leader of the party, IJennetc H. Voinii:;, ycm regularly appointed for special service. His instructions were to collect twenty men Confederate soldiers who were then in the ene- mey'a lines and to report to Mr. Clay for ordew. By these instruc- tions, the Govenunent to whom he owed civil and military obedienc(i declared to Young that Mr. (-lay was to all intents and purposes their representative, that Mr. Clay was their agent, and this autho- rity was just the same as if the orders had c tlie Con- federate JStates, or hi what position he w trds : them i>', matters not what was his appointment or oHico. In relation t" Young's mi.ssion, his authority from the Govermnent was unlimited, and 80 appears from the tenor of the documents adressed to Young. Ho had to direct absolutely, and Vmnig and his party had to obey. Were the ])risoners to take upon themselves to criticise th(; orders and instructions of their Government ? Could they as soldiers acruthiisc the documents, investigate the nature and duties of govern- ments, ascertain \vhether they went beyond the ordinary limits for action fixed by the rules of internati(maf law ? If tliey obeyed these orders, can they be amenable as common erimina.s to the* tribunals of the Federal Government, there to be tried as common highway- men? As subjects to the Confederate Government and as soldiers, if they refused to obey orders they are to be tried and shot; and i': ia now contended, by the applicants, that for having obeyed, they must be deprived of the immunity belonging to soldiers, and deli- vered to their enemies to bo tried as conimot) criminals. Tho prisoners fulfilled their mission, they executed the ordeis given U) them. They proceeded from Chicago where their party was formed, where the plan was made to assail the northern frontier o!' the enemy. It was discussed and settled there : St. Albans wa;< selected as the spot to be first operated upon. Young went to 209 ill Ulf lors Tn- for ose als *vay- iors. 1(1 i^ ■thev ieli- llci'S was V ol' was to St. Catherines to coiiCer with Mr. Chiy who sanctimitul tlio whole oxpcdition, ami in f'aet ordered it. That Mr. Clay did order it, there can be no douht. lie ropcatodly admitted it. Several witnesses testily to it, particularly ^Ir. Cleary, and th) two Messrs. Sanders. In a matter of this de8crii)tion the declaration made by the official ap})ointed for such specific political object, must be considered as the l)est evidence. Youn^ returned to Chicago, and thence ])roceedcd through Canada, as an ordinary traveller, to St. Albans. It is proved that four only of his command passed on British territory. The others were and had been living and plotting in the enemy's lines. The only nujiposition as to ihem must bo, that feeling secure enough to conspire in the enemy's territory and to remain there, they could as well come through American ground to St. Albans ; which was probably the better way to avoid rousing the 8us{)icion3 of the people of St. Albans. They arrived in St. Albans on the afternoon of the nine- teenth of October, th.cy collected together; and in broad daylight, at two o'clock of the afternoon, in a town of four or live thousand inha- bitants, took possession of three banks, plundered them, attempted to set fire to the place, ])rovided themselves with horses which they took from the citizens, and eft'ected their escaj)e with their booty from amongst the population who rushed to arms and pursued them, firing. It may be termed an outrage, a violation of the modern usages of war ; but history will look upon it as a bold and daring feat. It was within the power of the Government to order Young to fjack and burn the town, and he had to obey his orders, not to take upon himself to judge of his sufjeriors. He had only one duty to perform, and that at the risk of his life. He stood in the same position as a genera! who had received orders to invade the terri- tory of an enemy for some i)urno?o ; and the moment the (Jovern- ment declared that that party svere acting for them, there ended any responsibility ou the part of tiie individual. The Government could not be judged by any court. Tiie party who obeyed was right. He acknowledged no other superior than the Confederate Government, and he was bound to do his duty as a soldier, and not hesitate when called upon to execute a commission of danger. He did it, and in the most b. ave manner in which he could, declaring that he was a Coufedera: officer, that his men were Confedorate hsoldiers, and what he did was an act of retaliatory warfare for what had been done in the South. For such conduct ho assuredly could not be held up as a umrdorer and robber. From the very origin of the expedition it v;as a national, not an individual act, for which the parties executing it cannot be made responsible ; or in any manner accountable, except to their superiors. They, as soldiers, were mere aiechanical agents, passive subjects of the I, t mt ( Ml li '• 1 ■i' VM fl li I ■^4, li 270 moving power. Their sole duty was obedience ; and tor t'ulfiling that duty they cannot be amenable to the municipal tribunals of the enemies of their government. Obedience to the constituted authorities is a primary and essential obligation of all civilized communities. To render an individual liable for acts done in obe- dience to positive orders given by the authorities which he acknowl- edges as his legitimate superiors. wo\dd be subversive of all order. It is not in a British court of justice that such a proposition can be doubted. This question never was more ably treated and exposed than by Judge Talmadge, in his review and criticism of the judg- ment rendered by Jud;j,o Cowan in the celebrated case of jNIcLeod. Judge Cowan and the authorities of the State of New York con- tended there, Ihat an illegal act of war could not be sanctioned by the government of the oifender, to shield him from responsibility t< the municipal tribunals of the offended nation. This will probubly he the doctrine urged by the United States Counsel in support of the!? pretensions at this moment. No better, more clear and logica! 7 efuiation was ever made of tliis fallacv than by th"- <.minont judge, supported by all the most distinguished jurij;ts >»i that time in tht IJ/ilted States, and confirmed by Daniel Webster, the greatest states- w':"', orator, and lawyer this continent has ever produced. Any of the arguments after those given by such men weall, a colleague and fellow soldier in the same deed as IJurley, who was extradited for robbery l)y the judges of Upper Canada, and who pleaded to the charge of destruc- tion of the I'hilo ['arsons a coniiuission and justilication by President Davis, and who obtained for answer to this plea a sentence of doatii, which was strictly executed. The enemies of the prisoners, they who demand their extradition, cannot judge them : they can only exercise vengeance. One of the great ends of the institutions of civil society, says au eminent English Judge, is to prevent men from being judges in cases wherein they are concerned, and to remit the decision ol adverse interest to those who can have no interest in the determi- nation of such cases." In this instance you would deliver the lives of these men, not to the judgment of adverse interest, but to the ;nost bitter and violent jiassion of hatred, that which can be found in civil wars alone. No American statesman nor any writer of any moment has ever asserte(l that these men should be extradited. 'J'hey have com- jdained of the want of sufficient prevention of such outrages on our part. They claimed that the offenders should l)e punished for th* violation of our soil, Ibr the abuse of our hospitality by the South- ern refugees : but none have dared to assert, as a legal projiosition, that they were entitled to obtain the extradition of the prisoners. Our (lovernment has complied I'ully with their demand by the |)assing of the Alien liill ; and [ trust that it will be considered sulHcient satisfaction. If this law does not give our neighbors the protection they re(pilre, let them demand further legislation on our part, — they will have it. if the right of refuge itself is obnoxious to them, let it be abolished at their re(piest ; but so long jus it remains unimpaired — so long as oui- legislature has not abolished this ancient libertv — our iudges ntust and shall uphold it. They will protect the ref\igee in the enjoyment of that shelter which our institutions guarantee to him. They never will allow ])olicy, ex- pediency, to sway them to overrule princijtles of law. A thousand times better, — more honorable for \is, — more just, — it would be to let the world know that political refugees shall be entitled to this right only when it shall not be dangerous for us ; a thousand times better and more humane to give a fair warning to all that the prin- ciple, which never was doubted or (piestioned in England, is ino()C- rative and inefficient in Canada. It was always considered aa a beacon light to a safe harbor for distressed political fortunes ; if it *w I' ■*' s'tiJ fir'' ■■'■iim ]m K 274 be no more so, at least, do not use it as a false light to wreck them. Our courts cannot be influenced by any thing but right and justice ; they cannot be made subservient to power or authority. ^Vo have not yet reached tliat state of degradation. Wc have had unfortu- nately in this case too strong evidence of direct interference by our local Government. We have seen one Judge suspended, because he discharged the jn'isoners. Happily, however, we have a Judge who is independent of power, and in whoso hands ev(>ry 'nan in this coranmnity would sooner intrust a ((uestion of life and death, with all the influence of (lovernment and popidar clamor against him, than in tho hands of any jury ; and I leave the case of the prisoners with unbounded confidence in the hands of your Honor. March, 21st, 186r). Afr. Devlin, on behalf of the United States, said: It is, I have no doubt, as gratifying to you, as it certainly i^ to the Counsel who here represent the Governments of Canada and the United States, to find that the time and attention bestowed upon this Investigation have at last triumphed over the numerous and unexpected obstacles ojjposed to its termination, and brought us to that stage of the enquiry which enables us to address your Honor upon the merits of tho application for the extradition of tho pris- oners. The case, as I view it, is one of extreme simplicity ; and although it has attained to an unusual magnitude, and attracted public attention [terhaps to a greater degree than any demand ever before made under liio Treaty, I have certainly so far been unable to 'Jiacover that it jn-osents any feature calculated to embarras •'. the Court in dt-aling \sith ;t, or that even tends to withdraw it from the category of crimes oiiumorated in the Treaty under wliicli we are now proceeding. True it is that the prisoner's Counsel have labored hard to surround the act of their clients with grave international difficulties, and to impress upon it tlie character of an act of war ; but I flatter myself, that su))mitted as it will be to the test of sound sense and judicial scrutiny, the crime of robbery, of which the pris- soners are accused, will still appear, despite all tho f dse coloring under which it has been so ingeniously presented to your Honor's judgment. And here I may remark, that to me it doth seem as if my learned friends iancicd themselves endowed with some extraor- dinary magical influence ; for certainly without their supposed pos- session of some such rare and wonder-working power, it would be difficult indeed to believe that they would have attempted to elevate a daring act of robbery to the dignity of a manly deed of warfare, or claimed for its guilty perpetrators the consideration duo to the honest warrior who uses his arms for the legitimate objects of war. 27;> hvar ; pris- loring Inor's as if traor- pos- Id be jvatc ['fare, the war. and not as the prisoners did at St. Albans, for the i«;noble and savage purpose of rob))ing and murdering unarmed and defenceless citizens. I have said, your Honor, that thi;, enquiry, notwithstanding the simplicity of the (juestion involved in it, has attained an extraordi- nary importance, so much so, indeed, thanks to the fertile genius of my learned friends, that it has become a cttuse cclrbre. Hut let me ask what is it that has thus distinguished tiie St. Albans Raid, and given to it a world wide notoriety ? I answer imhesitatingly, its signal atrocity, the fraud and cunning by means of which it was achieved, aided, no doubt, by the extraordinary effltrts subsetpiently made by the frieiuls and sym[>athisers of the prisoners to strip their wicked deed of its criminal responsibility and to make of them, its guilty perpetrators, heroes if not martyrs, lie this, however, as it may, 1 entertain thehoi)e,in which f trust I will not be disappointed, that senseless clamor will not here ' nermitteil to drown the voice of public justice. That yo\u- IIoii ver mindful of the high and solemn trust reposed in your as one of the chosen administrators of the laws of our country, will not suffer your attention to be diverted from the consideration of the justice (»f our demand by the inHuni- matory speeches addressed by the learned Counsel ostensibly to you, but in reality to the passions, prejudices, and sympathies of the auditory which has filleil this spacious (,V)urt-room from day t(» day. And, now, let nie ask what does the duty imposed upon you retpiire ? It demands neiliier more nor less than tliat you should give ertect to the provisions of a Treaty without wiiicli Canada would soon become a place of refuge for criminals of every grade, an asy- lum for malefactors of every dye. l'\u' be it remembered that it was with the object of protecting the subjects of Her Majesty and the citizens of the United States from the direful consecpiences that inevitably followed where great criminals were allowed to escape the punishment due to their crimes, by fleeing from one foreign territory into another, that the ; to be found in the Consolid- ated Statutes of Canada, Cap. Sl>, p. 94-5, and commences thus : " Whereas, by the 10th article of a Treaty between Her Majesty and the United States of America, ratified, &c., it was agreed that Her Majesty and the said United States should, upon mutual requi- sitions by them or their Ministers, Officers or Authorities respec- tively made, deliver up to justice all persons who, being charged W Irl' ifi i 11 1 1 'i '1 m .<< ^J^ iy IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 I.I ■ 45 150 I- 1^ 1^ 12.2 SK.I US 1,2.0 m ill 1.4 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^^ \\ .'"r. ». Q %*^...^ <^ <^ ^ ^ C/. I J ': ■■•'i:l< 1' »■■:■?»"'; mn li' tfc;^ '^:f- 276 with the crime of Murder, or Assault with intent to commit Murder, nr Piracy, or Arson, or Robbery, or Forgery, or the utterance of Forged Paper Avithin the jurisdiction of either of the high contract- ing parties, should seek an asylum, or be found within the terri- tories of the other." Here we find that there can be no mistaking the class of offenders marked out for extradition, wiiich, be it re- membered, the same article of the Treaty commands shall bo granted " upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and committal for trial if the crime or offence had been there committed, and also provided that the evidence of criminality should be heard and considered by the Judge or Magistrate issuing the warrant, when, if deemed sufficient to sustain the charge, it became the duty of the Justice to certify the same to the proper executive authority, in order that a warrant of extradition might issue." This, your Honor, is the only test to which the guilt of any person demanded under the Treaty can be subjected until he is made to answer for his crime before the tribunals of the country against the majesty of whose laws he has offended. Who will say that this is not a wise measure of protec- tion, if not of prevention, against the commission in our midst of all or any of the foul crimes indicated in the Extradition Treaty ? Is there a law-abiding citizen in Canada who wishes for its abrogation? I believe there is not: and yet, strange as it may appear, this in- vestigation has revealed the startling fact that there are at this moment very many among us who erroneously imagine that this Tmtional convention, so necessary for the repression of crime, and so needful for the protection of society, dependent for its existence upon the good faith observed in its execution by both the contract- ing parties, may upon a special occasion be treated with indifference, (>r, in order to secure the immunity from punishment of some highly favored criminal, be ignored in such case altogether. In refutation of this mistaken notion of our duties and obligations ,mder the Treaty, I will now read from the published opinions of eminent Jurists and distinguished statesmen, a few extract. , to show their appreciation of the benefits derivable from its existence, and the rule to be observed whenever its execution becomes the subject of demand by either of the high contracting parties. Upon this point I refer firstly to a debate which took place in the House of Lords, in the month of February, 1842, when this Treaty was the subject of discussion. Upon that occasion Lord Brougham said: — " He thought the interests of justice required, and the rights of good neighborhood required, that in the countries bordering upon one another, as the United States and Canada, and even that in England and in the European countries of France, Holland, and :dor, 30 of ;ractr torri- aking it re- antcd of the found, crime at the )y the fficient certify .^arrant test to can 1)0 )re the he has protec- st of all ,y? Is igation ? this in- at this liat this me, and jxistencc tract- ferencc, le highly lligations ]nions of to show ice, and subject )e in the Treaty rougham he rights jing upon that in md, and 277 Bel.i^ium, iherc uught to be laws on both sides giving power under duo regulations and safeguards to each Government, to secure per- sons who had committed offences in the territory of one, and taken refuge in the territory of the other. lie could hardly imagine how nations could maintain the relationship which ought to exist bei», • .n one civilized country and another without some such power. " Lord Campbell, for his own part, should like to see some gene- ral law enacted and held binding on all states, that each sliould surrender to the demand of the other all persons charged witli serious offences, except political ; this, however, he feared was a rule or law which it would be difficult to get all nations to concur in." Upon the same subject, Sir Robert Peel, replying to Lord Pal- merston's speech condemning the other provisions of the Treaty, observes : — The next point to which I shall refer is the article of the late Treaty providing for the mutual surrender of persons charged Avith offences. '^Phe noble Lord admits that the general object aimed at by the article is a wise one, that when the countries have a common boundary, the escape of criminals by stepping over that boundary, is prejudicial to the cause of good order, and inju- rious to the interests of both countries. The reciprocal delivery of heinous criminals is clearly an object of importance to civilized Governments." Hansard's FarUamentarij Debate,^, 3rd series, vol. 07, p. 1223. President Tj^ler, in his Message communicating the Treaty tO' Congress, observes : — •' The surrender to justice of persons, who, having committed high crimes, seek an asylum in the territories of a neighboring nation, would seem to be an act due to the cause of general justice, and properly belonging to the present state of civi- lization and intercourse. The British Provinces of North America are separated from the States of the Union by a line of several thousand miles, and along portions of this line tif» amoimt of popu- lation on either side is quite considerable, while the passage of the boundary is always easy. Offenders against th* law on the one sidc transfer themselves to the other ; sometimes with great difficulty they are brought to justice, but very often they wholly escape. A conscio\isness of imm\mity from the power of avoiding justice in this way histigates the unprincipled and reckless to the commission of offences, and the peace and good neighborhood of the borders arc consequently often disturbed." (Message of President of U. S. to House of Congress, August, 1842.) Mr. Weltater, the American negotiator of the Treaty, in his cele- brated speecli, agc 124, wherein the law upon this subject is stated in these words : " It is not necessary that the party should be actually present, an eye or car witness of the transaction ; he is in construction of law present, aiding and abet- ting, if with the intention of giving assistance he be near enough to iitford it, should the occasion require. Thus, if he be outside the liousc watching to prevent surprise or the like, whilst his companions are in the house committing the felony, such constructive presence is sufficient ; one who keeps guard while others act thus, assisting them, is in the eyes of the law present and responsible as if actu- ally present. In case of stealing in a shop, if several are acting in concert, some in the shop and some out, and the property is stolen by one of those in the shop, those who are on the outside are equally guilty as principals in the offence in stealing in a shop." As to what violence is sufficient to constitute robbery, Archbold, in vol. 3, p. 418, says: " The ordinary mode, formerly of present- ing a pistol is sufficient, so, if the robber assault the party in any other way under such circumstances of terror, as to cause him to deliver up his money or other property, or if there be a struggle for the property before it is taken, is sufficient." If further testimony should be required, it would only be neces- sary to refer to the voluntary statements of the prisoners, in which they admit t]ieir commission of the crime charged against them, but, say they, we should stand excused. Why ? Because we informed Brock at the time Ave robbed him, that we did so in the name of the Confederacy. Truly a very consoling intimation. Such, your Honor, are the facts ; and such, also, is the law upon which we rest this branch of our case. The next consideration that presents itself is : What is the duty of the Judge under these cir- cumstance ? Would your Honor, if this crime had been perpetrated in this Province, and within the jurisdiction of this Court, by any of our citizens, with such evidence of its commission as we have laid before you in support of the present charge, hesitate for a, moment in committing them for trial ? I feel confident you would not ; and therefore I venture to say, that if the justice which under similar circumstances we would mete out to ourselves is not denied to the United States, and I hope it will not, your Honor cannot refuse to commit the prisoners now before you, to await the further action of B step opoai- And idcnti- onally flisted, I refer he law ry that of the 1 ahet- )ugh to ide the pamons resence ssisting if actu- cting in s stolen equally rchbold, preaent- r in any him to iggle for G neccs- 111 which ;t them, Luse we in the lion. |aw vipon tion that lese cir- jetrated any of ive laid Imoment lot ; and similar to the lefuse to iction of 28;? the (lovernment, upon the demand for tlu-ir oxtruditiou. In sup- port of this view of the case, I will now cite a few autliorities, which, 1 believe, arc worthy of your Honor's attention. Tin; DUTY OF TIIK .lUlXJE. Sir Cornwall licwis puts it thus clearly and explicitly : In order to render a system of extradition eftectual, the amount of proof, and the formalities re(iuircd should be as small as is consistent with the prevention of abuse. The essence of the system is, that confidence is reposed in the foreign government and in its administration of criminal law. The assurance of that (iovernment ought to be the chief guarantee against abuse. If, therefore, it claims any fugi- tive, through the accredited diplomatic channels, and gives a rea- sonable proof that there has been a j^ropcr investigation by the officers of police and the functional ics conducting the preliminary stages of judicature, and that this investigation had led to the con- clusion that the person in (picstion is guilty of the offence charged against him, it is desirable that the extradition should take place, upon proof of identity of the party, and without any full investiga- tion, such as a magistrate would make for the commitment of a prisoner in this country. (Lewis on Foreign Jurisdiction, p. 52). And again at page 58, he says : " The recognition of the criminal law of a foreign State, and the confidence in its regular and just administration which is implied in a system of extradition thus car- ried into effect, is ])aralleled by the established practice of this and other countries with respect to the civil law." In fact the rule thus clearly stated has been followed in practice whenever questions under the Treaty arose. In the xVnderson case. Chief Justice Draper, with reference to the case of a party accused of murder, seeking to justify it, obser- ved : — If there is a question of fact to be tried, I apprehend he must be surrendered, as such luestion can only be tried in the country where the tact arose. (L C. C. P. R. Nos. 1 and 2, Vol. II, page 60.) In the Chesapeake case the same question was incidentally dis- posed of. The Counsel. for the prisonei*s was proceeding to com- ment on tlie evidence of authority from the Confederate Govern- ment, when Mr. Justice Ritchie observed: '' Assuming, as you must do, at this stage of your argument, the correctness of the proceedings against the prisoners, and the Magistrate's Jurisdiction of the ofience, do not these questions fall within the province of the Superior Court on the trial of the pi-isoners ? Is it not the Magis- trate's duty now merely to see if a preliminary case is made out ? I think we must act in this case just as if it v,as an ofience commit- ted here. The (juestion is, would I on the evidence commit for • ■ It 'ih' m H .J I, '. >: r, :■..'' ',< ^:,.i "";-!. !■ ' -1: i" ^ 1 (:; 1 ■•4 % y-x ' !ii. .: }>.■■ ,,' 'f ■ y i - i|:, ' ^>i I trial ill this eonntiy '.'' It' «(>, must I not corninit tlic parties for extradition ?" To this the prisoner's Counsel replieil : — In Anderson's case a /u-lnid facie case was made out, but the jn-isoner was discharged, and so in I'. S. t'x. Palmer, 4 Curtis, pa,i:;e ;)I4, Parker is found in command ef the Uetril)ution, and Praine and Parr actin;^ unde- him, (Ritchie, .1, ) I thiidv th<\sc (piestions are itr()i)er for a .Jury, and not for tlio Magistrate. His duty is simply to deal with thia case as a Manistrate would deal with an offence to he tried in this country, (('hesapeake case, lleport, pa;L^e •55.) The case of Mct/,- gcr reported in the 5th vol. New Le;j;al Observer, maintains the same doctrine. The Magistrate must C(»mmit Avhen there is jusb ground for suspicion. I will now, said Mr. Devlin, call your Honor's attention to the case of Joseph Fisher (to he found in iSti((irt''s Repts,, \). 245,) decided in our own courts. Fisher was accused of having stolen $638 in the state of Vermont, one of the United States of America. Immediately after the robbery, he fled to Canada, hoping, like the jmsoners now before the court, to find a safe asylum here. Fishei' was, however, not permitted to enjoy his ill-gotten booty in peace. An application Avas made for his extradition, although, be it re- membered, there was at the time no Treaty as there is now for the surrender of fugitives from justice, in existence. The application was founded upon what is called the " comity of nations," and was heard before Chief Justice Reid. That eminent Judge, in dispo- sing of the question, said: — " This right of surrender is founded on the principle, that he who has caused an injury, is bound to ro {»air it, and he who has infringed the laws of any country is liable to the punishment inflicted by those laws ; if we screen him from that punisraent, we become parties to his crime, we excite retalia- tion ; we encourage criminals to take refuge among us. We do that as a nation which as individuals, it would be dishonorable, nay, criminal to do. If, on the contrary, we deliver up the accu- se(l to the offended nation, we only fulfil our part of the social com- ])act, which directs that the rights of nations as well as individuals should be respected, and a good understanding maintained between them ; and this is the more requisite amom/ neii/hboving States, on account of the daili/ communications which must necessailif sub- sist between them. A modern writer (Instit. du Droit de^ Gens, &c., par \q Gerard de Rayneval, liv. 2, ch. 3, ss. 4, p. 134), on the Laws of Nations, says : — " La communication journaliere entre deux pais limitrophes est inevitable, et clle doit etre d'autant plus favorisec par leurs gouvernemens respectifs, qn'elle est naturcllemcnt fondees sur des besoins rdciproquos et qn'elle donne par la, lieu a des changes, >-j ^i ics lor case a , t'oun'l ; iiudc L Jury, tU thia I in thi^ •f Mct/,- lins the ! id just ii to tlie I. 245,) cr stole 1). imcricii. like the Fisher n peace. be it re- V tor the )phcatioii , and was "n dispo- "oundeil nd to re- is liable lim from retalia- Wc do lorable , ic accu- cial com- ividuals between ^States, ally s)ib- ) Gerard Nations, nitrophes ar leurs 3 sur des changes. js:. d'ailleiu's die rtnblit ciifri' h'S Jiabitiinis rosix'ftit's dcs liaisdius, et iHic sorte de conliiinei" (|ui iissiirent lenr triiiii|ulllit(', ct coiitrihuent a leur joiiissaiice."*.'' Indeed, said tlio learned (.'liiet' .Justiee Ueid, were we to take into account the oj>inions of modern writers (»n Internati, p. i'AO) and others for piracy alleged to have been committed in seizing steamer".!. L. Gerrity," in the month of November, lSGl5, the judges of the (Queen's IJench in Englan Richmond, June 16, 1864, ) Sir, — You are hereby informed that the President has appointed you First Lieutenant, under the act 121, approved February 17th, 1864, in the Provisional Army, in the service of the Confederate enta >usly T the luiry pe ra- vages icc of .s, for rnisetl ic cir- mptod posin,:.; rfeitoil i-om a it tUelt' y goo^l .e inge- ication. such as vhich I jotaniis- iwously^ Ivviec of er this ated to ;e fuUy lor e\ se- pel, wc [mission Ipointed ly 17th, [ederat.3 States, to rank as sucli from tlie li>th day of June, 18G4. Should the Senate, at their next session, ADVISE and CONSENT THERETO, you will be commissioned accordingly. Immediately on receipt thereof, please to communicate to tlii-^ Department, through the Adjutant and Inspector Oeneral's Office, your acceptance or non-acceptance of said appointment, and, with your letter of acceptance, return to the Adjutant and Inspector (Jeneral the oatli herewith enclosed, properly filled up, subscribed, and attested, reporting at the same time your age, residence, when appointed, and tlie State in which you were born. Sho\dd V(ui accept, you will report for duty to (Signed) .IAS. A. SEDDON, Secretary of War, lieut. Bennct TI. Young .^c. . excite astonishment at its having been urged upon the attention of the Court. Indeed, it is well calculated to induce the belief that we are trifling with our Treaty obligations. It has, however, been said on behalf of the accused, that Young received instructions subsequent to his pretended commission which supply the authority of the Senate and establish his military status. These instructions I will how read word for word as I find them in the evidence. .^i. 1: ' m I '•' 1 fl fl: ^ ■M'-- ''''■. J' . V ■ r r. :■,,:■ i * . ft !.'' .'•■ ' '■ W: I' v'> J.. :;f:K f^^fi 292 Confederate States of America, War Department, Richmond, Va., June 16th, 1864. To Lieut. Bennet H. Young, Lieut., — You have been appointed temporarily First Lieut, in the Provisional Army for special service. You will proceed without delay by the route already indicated to you, and report to C. C. Clay, jun., for orders. Y^'ou will collect together such Confederate soldiers who have escaped from the enemy, not exceeding twenty in number that you may deem suitable for that purpose, and ex- ecute such enterprises as may be indicated to you. You will take care to organize within the territory of the enemy, to violate none of the neutrality laws, and obey implicitly his instructions. Y''ou and your men will receive transportation and customary rations, and clothing or commutation therefor. JAMES A. SEDDON, Sec. of War. Confederate States of America, War Department. Richmond, Va., June 16th, 1864. To Lieut. Bennet H. Young, Lieut., — You have been appointed temporarily 1st. Lieut, in the Provisional Army for special service. You will proceed without delay to the British Provinces, where you will report to Messrs. Thompson and Clay for instructions. You will, under their direction, collect together such Confede- rate soldiers Avho have escaped from the enemy, not exceeding twenty in number, as you may deem suitable for the purpose, and will execute such enterprises as may be entrusted to you. Y'ou will take care to commit no violation of the local law, and to obey imphcitly their instructions. Y'ou and your men will receive from these gentlemen, transportation, and the customary rations and clothing, or commutation therefor. JAMES A. SEDDON, Sec. of War. Va., June 16th. Confederate States of America, War Department, Richmond, Va., June 16th, 1864. Lieut. B. H. Y'oung is hereby authorized to organize for special service a Company, not to exceed twenty in number, from those who belong to the service and are at the time beyond the Confederate States. You to obey re from IS and f War. |4. special )se who tederatc 293 They will be entitled to their pay, rations, clotlilng, and trans- portation, but no other compensation for any service which they may be called upon to render. The organisation will be under the control of this Department, and liable to be disbanded at its pleasure, and the members returned to their respective companies. JAMES A. SEDDON, Secretary of War. Here, your Honor, we have no less than three different sets of instructions, emanating, we are told, from the Confederate Secre- tary of War, and each of them upon the IGth of June. In the first instructions given, Young is ordered to proceed without delay by the route already indicated to him, and to report to C. C. Clay^ Jun., for orders. In the second, the same Bennett II. Young is ordered to proceed without delay to the British Provinces, and there report himself to Messrs. Thompson and Clay for instruction. While in the third set of instructions he is informed, that the organization will be made under the control ofthe War Department. Now, how are we for the purposes of this enquiry, to reconcile these conflicting orders ? Can we seriously believe that Jas. A. Scddon, supposing him to have been a sane man upon the 16th of -Tune last, ever subscribed his name to orders so ridiculously con- tradictory to each other ? For my part, I incline to the belief, that he did not, and for this reason, that I am strongly impressed with the conviction that the pretended commission and instructions have been fabricated to meet the exigency of the prisoners' position. But whether I am right in this conjecture or not matters little, as neither the so-called commission nor its accompanying instructions, convey any authority to the prisoners to engage in acts of murder or robbery. Indeed, so true is this, that Ave find their Counsel re- lying for a justification of their crimes, not upon the alleged autho- rity of James A. Seddon, but upon the order of the mysterious C. C. CLiy, whom nobody in Canada, except the prisoners and their Counsel, seems to have seen, known, or cared about. Remember- ing, however, that C. C. Clay, Jun., has figured conspicuously in this investigation; that it is he, whom we are told, planned, autho- rised, and directed the execution of the St. Albans raid, that it was his command the prisoners obeyed, and stated they were bound to obey, I feel myself called upon to examine his authority to sanction the crimes committed at St. Albans, and to issue military orders from Canada. Here is his letter to Young 1,-1 V ' ! . - '. , I il m nil: 1 ■ ■*;■* i'(i llr M i ■;i! i ;i •m 294 PAPER P. Mem. for Lieut. Beiinet Young, C. S. A. Your report of your doings, under your instructions of IGth Juno last from the Secretary of War, covering the list of twenty Confede- rate soldiers who are escaped prisoners, collected and enrolled by you under those instructions, is received. Your suggestions for a raid upon accessible towns in "N'ermont, commencing with St. Albans, is approved, and you are authorised and required to act in conform if// icitlt that si(q i : i. l«. 296 not to this hour, acknowledged the acts of the prisoners, or in any way assumed the responsibility of what they did at St. Albans. In support of this statement, I refer to the evidence of the Revd. Stephen F. Cameron, the messenger dispatched to Richmond, U) obtain from there a ratification of the prisoners, acts, or such other evidence as would prove that their raid was directed, sanctioned, and authorized hy the Confederate government, and that they, the prisoners, were duly commissioned ofiicers and soldiers of the Confederacy. Your Honor will remember how often and how ear- nestly my learned friends protested against being called upon for the defence of their clients, until they had an opportunity of com- munication with Richmond. But why this necessity for communi- cating with Richmond if the pretended commission and written me- morandum of C. C. Clay were, at the time of their production by the jtrisoners, as we are told they were, sufficient to prove their military status? The fact is. Sir, my learned friends knew then, as they know now, if they Avould but make the admission, that Ijie prisoners had no authority whatever to justify their crimes, or to stay the demand for their extradition. And hence their frequent appeals for delay, to communicate with the magistracy at Richmond. Well, that delay was accorded to them, and now that the messenger has returned, let us see what he has brought to aid the cause of the prisoners, I find. Sir, that he has laid before this Court as the result of his perilous journey, three copies of three muster rolls of three Companies, in which the names of the prisoners have been very badly written indeed ; and so far back it would seem as two years ago. Now, your Honor, this is not the kind of evidence which the prisoners in their affidavits fyled in support of their application for delay, stated they needed for their defence, and could procure upon communication with Richmond. The truth is, they had hoped that ihe Confederate President, if appealed to, might be induced to avow their acts. But, although I would not attach the least importance to his avowal, even if it had been made, it is still worthy of remark, that he has withheld it. And the reason, said Mr. Cameron in his evidence, is, " That his General Order in the Burley case had been disregarded by the Judges of Upper Canada. President Davis, ob- served the witness, seemed piqued and indignant of the facta. " This, your Honor is the excuse offered for the reticence of Mr. Davis, for his unwillingness to hold himself or his Government, such as it is, responsible for the outrages committed at St. Albans. Will you then, seeing that the Confederate authorities have pointedly refused to acknowledge the Military status claimed for the prisoners, supply the want by the substitution of your sanction for their autho- rity ? I earnestly hope you will not place yourself in such an unen- viable position, a position which I take the liberty of saying would ago. 3oners elay, upon that lunen- srould 297 be dishonoring to the high character of the judiciary, and cx- tremelj prejudicial to the best interests of the people of Canada. With these remarks upon this branch of the (juestion at issue, I will now, in reply to my learned friends, proceed to consider our neutral obligations to the United States, and with the further object of showing that is not only our duty, but our interest, if we wish to secure to ourselves a continuance of the blessings of peace, to observe a strict impartiality in the pending conflict, and not to favor one of the contending parties to the injury of the other. DUTY OF NEUTRALS. Cliief Justice Jay, in his charge to the Grand Jury, in the case of Wenfield, (^Reported in Whartoji's Kept, of State Triah hi U. 8.^ accused of a violation of the neutrality laws of the United States, made the following sensible remarks, which I ([uote, as being in my opinion precisely applicable to our state at this moment. TJiat eminent Judge said : — " By the laws of nations, the United States, as a neutral power, are bound to observe the line of conduct indicated by the proclamation of the President towards all the belligerent powers, and that although we may have no treaties with them. Surely (said he) no engagements can be more wise and virtuous than those whose direct object is to maintain peace and to preserve large portions of the human race from the complicated evils incident to war. While the people of other nations do no violence or injustice to our citizens, it would certahily be criminal and wicked in our citizens, for the sake of plunder, to do violence and injustice to any of them. If you let loose the reins of your subjects, against foreign nations, these will behave in the same manner to you, and instead of that friendly intercourse which nature has established between all men, we should see nothing but one nation robbing another. The respect which every nation owes to itself imposes a duty on its Government, to cause all its laAvs to be respected and obeyed, and that not only by its proper citizens, but also by those strangers who may visit and occasionally reside within its territories. There is no principle better established than that all strangers admitted into a country are, during their residence, subject to the laws of it ; hence it follows that the subjects of belligerent powers are bound, while in the country, to respect the neutrality of it." Did Clay do this V Did the prisoners do it ? St. Albans answers no, and well it may so answer. " While " said the learned Judge, " we contemplate with anxiety and regret the desolation and distress which a war so general (war was then being carried on between Austria, Prussia, Sardinia, Great Britain and the United Netherlands of the one part, and ::;■] I, < ■ •' T I ; iM \'^-.!t j1. ' . ' 208 b'ranco of the otlicr) and so inflamed will jirobably spread over •.nore than one country, let \is M'itli becomin;; gratitude wisely estimate and cherish the peace, lil)erty, and safety Avith which the Divine Providence has been {)leased so liberally to bless us. Self- ]>reservation is a primary duty of a state as well as of an individual. To love and to deserve an honest fame, is another duty of a state as well as of a man. To a state as well as to a man, reputation is ,1 valuable and an agreeable possession. But with war and rumors of war, our ears, in this imperfect state of things, are still assailed. " Into this unnatural state ought a nation to suffer herself to be drawn without her own act, or the act of him, or them, to whom for tlie })urposo she has delegated her power ? " '" Into this unnatural state should a nation suffer herself to be drawn by the unauthorized, nay, l)y the unlicensed conduct of her citizens ? *' •• Humanity and reason, says Wdtd, say no." In the case of Talbot iv*. Janson, for a breach of neutrality law, (1 Curtix'' Ju'pts. of Decision in the Sup. C. of the U. S., p. 134,) Judge Patterson said; — " The United States are neutral in the jiresent war ; they take no part in it ; remain common friends to all the belligerent powers, not favoring the arms of one to the detri- ment of the others. An exact impartiality must mark their conduct towards the parties at war, for if they favor, they favor one to the injury of the other. It Avould be a departure from pacific principles, and indicative of a hostile disposition. It would be a fraudulent neu- trahty." At (p. 13G) he says ; — " The principle deducible from the law of nations is plain ; 7/oi( shall not make uhc of our neutral irm to capture vessels of vouu enemies, but of ouii friends. Jf voii do. and brinj the captured vessels tvithin our jurisdiction, restitution u'ill he awarded. ]>oth the powers in the present instance, though enemies to each other, are friends of the United States, whoso citizens ought to preserve a neutral attitude, and should not assist either party in their hostile operation." Philliniyre (Y. 1, 2, p. 189) says : " A Rebellion or a civil commotion, it may happen, agitates a nation ; while the authorities are engaged in repressing it, bands of rebels pass the frontier, (shelter themselves under the protection of the coterminous State, and from thence, with restored strength and fresh appliances, renew their invasions from the State in which they have escaped. The invaded States remonstrate. The remonstrance, whether from favor to the rebels, or feebleness of the executive, is unheeded, or at least, the evil complained of, remains unredressed. In this state of things, the invaded State is warranted by inter- national law in crossing the frontier, and in taking the necessary means for her safety, whether these he the capture or dispersion of and neu- from lutral V csent ^nited and civil orities ontier, State, renew The from ed, or inter- \e8sari/ \ion of 290 the reheU, or the ifc-itru'iion of their ittront/hold^ c Sueli mimand armies amers. chief omes a ation as ps onlv kho has ice and ountry, le case. est the to give ipel the jury, if finally 1 case, to justice. lere, at le was. 301 1'he Sovereign who refuses to cause reparation to he made for the damage done hy his suhject, or to punish the offender, or finally, to deliver him up, renders himself in some measiiro an accomplice in lilt? injury, and becomes resp(>nsil)lc for it. Hut if ho delivers up either the property of the offender, as an indemnification, in cases that will a'hnit of pecuniary compensation, or hia person, in order that he may suffer the punishment due to his crime, the off^^nded party }jas no further demand on him." In support of the doctrines and opinions thus enunciated, many other eminent writers and authors could he (pioted. JJut 1 conceive that I have gone far enough in this direction, and have adduced suflBcient authority to refute the mistaken o{)inions entertained by our opponents of the obligations imposed upon us by the laws of neutrality. J now call your Honor's attention to the case of Bennett G. Burley, lately extradited upon the demand of the United 1^'tates. This person was arrested upon a charge of rolibing ono Ashley, on hoard the Philo Parsons, a steamer sailing at the time on Lake Erie. The prisoner when ordered to render an account of his conduct before the Recorder of the City of Toronto, set up as a justification of the act, that he, Burley, was a commissioned otiiccr in the service of the so called Confederate States, that he was entitled to be regarded as a belligerent, and that his object in taking forcible possession of the Philo Parsons, which he and others did, in addition to the robbery of Ashley, was to use her as a means to enable his party to effect the release of Southern ])risoners d(!tained in Camp Douglas, on Johnson's Island. The Recorder lield that the act of robbery was not justified, and ordered extra- dition. A writ of ILtheas Corpus was next applied for by the prisoner's counsel. The application was made to Chief Justice Draper, who had sitting with him three other Judges. It was very ably argued and very ably opposed by the counsel engaged on both sides, and after a patient and careful consideration of the facts and the law applicable to them, the writ of Habeas Corpus was, by these learned Judges, refused. Be it remembered, too, that in this case the prisoner produced an order or proclamation from the Confederate President avowing the act of Burley, and assuming all the respon- sibility. But the Judges held, and held rightly, that no such order or .proclamation could justify the circumstances under which the crime was committed, commencing with the violation of our neu- trality laws ; and that if the authority upon which the prisoner relied, was of any value, the proper time and place to urge it as matter of justification, was at his trial, and before the Court having jurisdiction to hear and determine upon the merits of the offence charged. There is then this difference between the case of Burley • t .1- I f •li^ Hf m ■'4 i m fi« 'fe^W r i %•■ imm ) "; '!*■•' 1 e ^■i. I'l'X' p.; iwSM 1' ■ ifov t ]?|^f r^ 1 ' fe* 302 and tliat of tlio prisoners now before tills Court, that Mr. Davis avowed Burlcy's deed, and refused to give a like recognition to the acts of Bennett II. Young and his accomplices. But then tlie soundness, the legality of this judgment have been questioned l>y my learned friends on the other side. Indeed one of them has carried his criticism to the extreme length of saying, that the judgment is a disgrace to the judiciary of Upper Canada, and is a [iroof of the unfitness of the Judges in that section of the country, to deal with (piestions of international law ! I Perhaps this is the opinion of the gentleman Avho has denounced in such strong vituperative terms the Chief Justice and his brother Judges. But certainly it is not the opinion of the eminent writers upon interna- tional law, from whose pagesjl liave i-ead, nor Avill it, I trust, be the opinion of your Honor. I admit, however, that the learned Judge > whose judgment has provoked so much wrath, committed an unpar- donable error in adjudging Burlcy's case, without consulting my learned friends, whom I am sure would have felt great pleasure in indoctiinating their Honors with idea^ of international law a^ understood by Jeft". Davis, and practised by raiders generally. Believing, however, that the Bench of Upper Canada will not be deterred from pursuing the ]\ath of rectitude, by the belligerent observations of my learned tViend, and that it is quite possible he might be induced to look upon them with more favor, if he heard the reasons of their judgment once more, I will noAV read a few extracts from the published report of their decision, which, notwitl:- standing all that has been said to the contrary, T still persist in commending to the careful attention of the prisoner's counsel. " But," said CJnef Justice Draper, " conceding that there if evidence that the prisoner was an officer in the Confederate service, and that he had the sanction of those who employed him t" «*ndeavor to capture the Michigan, and to release the prisoners on Johnson's Island, the manifesto put forward as a shield to protect the prisoner from personal responsibility does not extend to what; lie has actually done — nay more, it absolutely proliibits a violation of neutral territory or of any rights of neutrals. The prisoner, how - ever, who according to the testimony, was a leader in an expedition, embarked surreptitiously from a neutral territory. His followers. with their weapons, found him within that territory, and proceeded thence to prosecute their enterprise, whatever it was, into* tho territory of the United States. Thus, assuming their intentions t < have been what was professed, they deprived the expeditioii of th.? character of lawful hostility, and the very commencement and embarkation of their enterprise was a violation of neutral territory, and contrary to the letter and the spirit of the manifesto produced. This gives a greater reason for carefully enquiring whether, lookin-^ 303 I to what violation ^r, how - |cclitiori. lUowors, )ceede(l ito- the itions t < of the mt and [rritory. )duced. Ilookin.:: at the whole case, the alleged belligerent enterprise was not put forward as a pretext to cloak very different designs. Taken by themselves, the acts of the prisoner liimself clearly establish fv prima facie case of robbery with violence — at least according t'l our law. The matters alleged to deprive the prisoner's acts of this criminal character are necessarily to be set up by way of defence to the charge, and involve the admission that the prisoner committed the acts, but denying their criminality. Assuming some act done within our jurisdiction, which, unexplained, would amount to robbery ; if explanations were offered, and evidence to support them wen- given at a preliminary investigation, i.ic accused could not be discharged — the case must be sul^mitted to a jury. This cas • cannot, from its very nature, be investigated before our tribunal'', for the act was committed within the jurisdiction of the Unitcil States. Whether those facts are necessary to rebut the prima facie case can be proved, can only be determined by the courts of that country. We are bound to assume that they will try ami decide it justly. I do not, on the whole, think the prisoner is entitled to be dis- charged. I should add, that, considering the nature of the (juestions tu be determined, I requested the learaed Chief Justice of the Commo'/i Pleas, and my brothers Ilagarty and Jolm Wilson, who were all, at the moment, within reach, to sit with me and aid me with tbeii opinion. I am sustained by their concurrence in the conclusion at which I have arrived." Chief Justice Richards — " Taking the evidence adduced against; the prisoner, there seems to have been sufficient to warrant his committal. Then, has he shown sufficient to relieve him of the charge ? " If, on a similar matter occurring in this country, I was called upon to decide whether I would discharge the prisoner or commit liim for trial, I should feel bound to c<^mmit liim. I should say. that looking at all the tacts as they are presented on either side, the conduct of those parties, and what they said and diil during the time the vessel was in their possession, was of that equivocal character, that it would, in the most favorable view suggested for the prisoner, be a matter for the consideration of a jury, whether they were acting in good faith in carrying out a belligerent enter- prise, or whether they were not making an expedition for the pur- pose of plunder, under pretence of a belligerent enterprise, think- ing in that way more readily to escape detection. " Entertaining the opinion I have expressed, it is my duty to declare that the learned Recorder was warranted in deciding to commit the prisoner for the purpose of being surrendered. As 4 I!' I!' I -I'Ti iii ',=' ■• m 1 1''> , m. R I ■t:;. 304 ]ong as the Extradition Treaty between this country and the United States is in force, it ought to be honestly carried out, and in all cases where the evidence shoAvs that an offence had been committed, though there may be conflicting evidence as to the facts, or different conclusions drawn from the facts, yet in those cases where we would commit for trial, in similar cases in this country, we are equally bound to commit to be surrendered for trial under the Treaty, and our Statute passed to carry it out. Wc must assume that parties will have a fair trial after their surrender, or we ought not to deliver them up at all, or to have agreed to do so." Justice Hagarty — "I think the only just course open to a Cana- dian Court is to decline accepting either the prisoner's statement or his alleged employer's avowal of his acts, as conclusive evidence of the proposition that his conduct was war and not robbery. It should accept the evidence offered as establishing a prima fade case of guilt sufficient to place the prisoner on his trial, and all for his defence. The whole burden of proving that the transferring of the money from Ashley's pocket to that of the prisoner and his friend, docs not bear the complexion that men of plain understand- ing must, under the circumstances, attribute to it, must be thrown upon the prisoner. I think I am bound to a treaty so made between my Sovereign and her ally in a liberal and just spirit, not laboring with eager astuteness to find flaws or doubtful meanings in its words, or in those of the legal forms required for carrying it into effect. We arc to regard its avowed object, — the allowing of each country to bring to trial all prisoners charged with the expressed offences. Neither of the parties can properly have any desire to prevent such trial, or to shield a possible offender. If the position of the case were reversed, and the prisoner had done the acts com- plained of in this country, and claimed to be a belligerent against our Sovereign, I think any Canadian judge or magistrate would commit him for trial for robbery, leaving him to plead his bellige- rent position at his trial for what it was worth. I have neither the desire nor the right to assume that he will not be fairly tried in the United States. The Treaty is based on the assumption that each country should be trusted with the trial of offences committed within its jurisdiction. I think the prisoner should be remanded on the Recorder's warrant, which I think is not open to any valid objection. Had I differed from the result arrived at ' by the Recorder, I should then have to consider a doubt more than once expressed, whether any judge can review his decision." (After reciting the facts, Mr. Justice Wilson proceeds :) " These proceedings, so mean in their inception and so ignoble ^ifei \k mr. 305 the and been ) the those I this d for Wc inder, to do Cana- ement idencc y- I' I jaeie all for ferring ind his rstand- thrown vereigii 1 eager s, or in )f each pressed esire to position ts com- against would |bellige- neither lly tried on that iimitted nianded ty valid by the Ian once t I ignoble acts 01 war, and to accord to the prisoner b^..-^ is there in all this which constitutes the act of war ? development and termination, we are asked to consider a^ "serent rights. What If the object were to release the prisoners, from all that appears, they never were nearer than fourteen miles to Johnson's Island. Was the seizure of this unarmed boat per se an act of war ? — for it has been argued that the robbery was merged in the higher act. The seizure of the boat, for whatever purpose, was one thing, the robbery of Ashley quite another ; and in no way that we see, in furtherance of the design now insisted upon necessary for its accomplishment. But is not the bona fide of the enterprise matters of defence which a jury ought to try ? Such a trial can only be had where the offence was committed, and we cannot doubt but that justice will be fairly ad- ministered. Then we are told that although the prisoner has no orders to show, authoruing what he did, he has the manifesto of the President. of the Confederate States avowing the act and as- suming it, and therefore he is not subject to this charge at all. We accord to that Confederacy the rights of a belligerent, as the United States has done from the day it treated the soldiers of tlie revolted States as prisoners of war ; but there is an obvious dis- tinction between an order to do a belligerent act, and the recogni- tion and avowal of such an act after it has been done. The one i:3 an act of war, the other an act of established government. The one is consistent with what Great Britain acknowledges, the other is note For us judicially to give eftect to the avowal and adoption of this act, would be to recognize the existence of the nationality of the Confederate States, which, at present, our Government refuses to acknowledge. Giving for the moment this manifesto its full force, it distinctly disclaims all breaches of neutrality : but it is clear that this expedition took its departure and shipped its arms from our port. But does it assume the responsibility of this seizure, and all that was done upon it throughout ? If not, it is neither justification nor excuse. I see no authority for the doing of the act, and as an assumption of what was done, therefore, the whole justification fails. Lastly, the attitude of the United States towards us is no concern of ours. Sitting here, whatever they do, while peace exists, and this Treaty is in force, we are bound to give it effect. We can look with no favor on treachery and fraud ; we cannot countenance warfare to be carried on except on the principles of modem civilization. We must not permit, with the sanction of law, our neutral rights to be invaded, our territory made the base of warlike operations or the refuge from flagrant crimes. Peace is the rule, war the exception of modern times ; equivocal acts must be taken most strongly against those who, under pretence of war, commit them. For these V •I it '■ii- If i; ill' v> J; C il 1 n .f -i |i ^i!'' I*':*- 306 .,,1.' M Ui-> I Ik /. ■;*i If:. reasons, I think the prisoner must be remanded on the wan'ant of the learned Recorder." And for the same reasons so also should the prisoners here be remanded, unless it can be made to appear that we have one set of neutrality laws for Upper Canada, and another and a totally dis- tinct set for Lower Canada. But as this is not pretended, the judgment in the Burlej case disposes of the question at issue here, unless indeed your Honor, like the prisoners' counsel, should be of opinion that your brother Judges,— distinguished as they undoubtedly are for judicial attainments of the highest character, — have in the Burley matter misunderstood the law, misapplied the facts, and evidenced gross ignorance of our international relations, a con- clusion which assuredly does not flow from the premises. With these remarks on the Burley case, I will now address my- self to another point raised by tlie JYisoners' counsel, which I un- dertake to refute by incontrov rti' '«o authority, namely, that the prisoners being citizens of the S ^utl.crn States, had, by the laws of war, a right to regard the citizci s of the Northern States, with whom they are at war, as their enemies, and as such to put them to death, wherever or whenever they could, and that for this pur- pose they have a right to employ all sorts of means. " A strange maxim !" (^Vattel, B. 3, c. 8, p. 357,) "but happily exploded by the bare ideas of honor, confused and indelinite as they are. In civil society, I have a right to punish a slanderer — to cause my property to be restored by him who unjustly detains it ; but shall the means be indifferent? Nations may do themselves justice, sword in hand, when otherwise refused to them ; shall it be in- different to human society that they employ odious means. (^Ibid.y B. 3, c. 8, p. 351.) Women, children, feeble old men, sick persons, ■come under the description of enemies, and we have certain rights over them, inasmuch as they belong to the nation with whom we arc at war. But these are enemies who make no resistance, and consequently we have no right to maltreat their persons or use any violence against them, much less to take away their lives. This is so plain a maxim of justice and humanity, that at present every nation in the least degree civilized acquiesces in it. The like may be said of the public ministers of religion, of men of letters, and other persons who live remote from military affairs. (Was not St. Albans remote from military affairs ?) At present war is carried on by regular troops ; the people, the peasants, the citizens take no j)art in it, and generally have nothing to fear from the sword of the enemy. {Ibid., p. 359). I give, then, the name oi assassination to a treacherous murder, whether the perpetrators of the deed be sub- jects of the party whom we cause to be assassinated — or of our own Sovereign. Assassination and poisoning are, therefore, con- 307 ■f.t trary to the laws of war, and equally condemned bj the law of na- ture and the consent of all civilized nations. (^Ibid., pp. 361, 362.) I cannot conclude this subject of what we have a right to do against the person of the enemy, without speaking a few words concerning the dispositions we ought to preserve towards him. Let us never forget that our enemies are men; though reduced to the disa- greeable necessity of prosecuting our rights by force of arms, let us not divest ourselves of that charity which connects us with all mankind. Thus shall we defend our country's rights without vio- lating those of human nature. Let our valor preserve itself from every stain of cruelty, and the lustre of victory will not bo tar- nished by inhuman and brutal actions. (^Ibid., p. 368.) What we have advanced is sufficient to give an idea of the moderation which we ought to observe, even in the most just war, in exerting our right to pillage and ravage the enemy's country." " Except the single case in which there is question of punishing an enemy, the whole is reducible to this general rule. All damage done to the enemy unnecessarily, every act of hostility which does not tend to procure victory and bring ivar to a conclusion, is a li- centiousness condemned by the law of nature. (^Ibid., p. 369.) The pillage and destruction of towns, &c., are measures odious and detestable on every occasion when they are put in practice without absolute necessity, or at least very cogent reasons. But as the perpetrators of such outrageous deeds might attempt to palliate them under pretext of deservedly punishing the enemy, be it here observed, that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous offences against the laws of nations." " Soldiers, says Vattel (B. 3, c. 15, p. 400), " can undertake nothing without the express or tacit command of their officers. They are not to act at their own discretion. Wherefore, with respect to things which are not entrusted to their charge, they (soldiers and officers) may both be considered as private individu- als, who are not to undertake anything without orders. The obli- gation of the military is ever, more strict, as the martial law expressly forbids acting without orders ; and this discipline is so necessary that it scarcely leaves any room for doubt." These citations, I think it will be admitted, do not bear out my learned friend's ideas of carrying on war. We will now see what Wheaton says upon this subject (^Wheafon, p. 7.) "Thus, for instance, on mere general principles, it is lawful to destroy your enemy ; and mere general principles make no great difference as to the manner by which that is to be effected ; but the conventional laws of mankind, w^hich is evidenced in their practice, does make a distinction, and allows some, and prohibits other modes of de- ls < I ii 11? I 'I ill ■\t>'' % f ; 'i .; t 'm 4' fr: i ! i.;;:- i Li v;' J .1 ' «08 struction ; and a belligerent is bound to confine himself to those- modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes. (^Ibid., p. 588.) No use of force is lawful, except so far as it is necessary. A belligerent has therefore no right to take away the lives of those subjects of the enemy whom he can subdue by other means. Those who are actually in arms, and who continue to resist, may be lawfully killed ; but the inhabi- tants of the enemy's country who are not in arms may not be slain, because their destruction is not necessary for obtaining the just ends of the war. [Was the assassination of Morison at St. Albans by the prisoners necessary for this purpose ?] (Wheaton, pp. 591 to G04.) All the members of the enemy's State may lawfully be treated as enemies in a public war ; but it does not, therefore, fol- low that all these enemies may be lawfully treated alike. No use of force against an enemy is lawful unless it is necessary to accom- plish the purposes of the war. The persons of the Sovereign and his family, the members of the civil government, Avomen and child- ren, cultivators of the earth, artizans, laborers, merchants, men of science and letters, and generally all other public or private indi- viduals engaged in the ordinary civil pursuits of life, are, by the custom of civilized nations, founded upon the foregoing principle, exempted from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of Avar, by which they forfeit their immunity. Private property on land is also exempt from confiscation, Avith the exception of su^h as may become booty in special cases, Avhen taken from enemies in the field {Ibid., p. 626). The effect of a state of Avar lawfully declared to exist is to place all the subjects of each belli- gerent poAver in a state of mutual hostility. But the usage of nations has modified this maxim, ht/ legalizing such acts of hostility only as are committed by those %vho are authorized by the express or implied command of the state. Such are the regularly com- missioned naval and military forces of the nation. The horrors of Avar Avould indeed be greatly aggravated if every individual of the belligerent states Avas alloAved to plunder and slay indiscriminately the enemy's subjects, Avithout being in any manner accountable for his conduct. Hence it is that in land Avars irregular bands of marauders are liable to be treated as laAvless banditti, not entitled to the protection of the mitigated usages of Avar as practised by civilized nations." " War (3 Phillimore, p. 100,) is not to l- i,'<)nsidered as an in- dulgence of blind passions, but as an act of deliberate reason ; and as Lord Bacon says, 'no massacre or confusion, but the highest trial L'om war of ility \ress pcm- of the Itely ible of Itled in- as Irial 309 of right.' Wanton cruelty exorcised towards the enemy's subjects is therefore, according to the principles and practice of Christian nations, unjustifiable and illegal. {Ibid., p. 103.) Reason, mora- lity and religion alike commend to the understanding and the con- science of nations, that cardinal principle of the law of war, to which reference has already been made, and by which it is decided, ' that every thing is 7iot lawful against an enemy,' but only those things which are essential to the vigorous prosecution and speedy termination of the war. The conqueror {lb., p. 145) is obliged by the laws of just war, to spare those who lay down their arms, or who are helpless. To put such to death is to commit murder. And those who commit it, ought to die by the hand of the hangman, and not of the soldier. Bands of marauders acting without the authority of the Sovereign or the order of the MiUtary commander, have no claim to the treatment of prisoners of war." The same doctrine is maintained by every modem writer upon the laws of civilized warfare. In the case of Talbot vs. Janson, decided in the Supreme Court of the United States, and reported in 1 Curtis, p. 139, the principle, supported by the authorities 1 have just quoted, is well and clearly laid down in a judgment ren- dered by that high tribunal, from which I take the following ex- tract : " That by a due consideration of the law of nations, what- ever opinions might have prevailed formerly to the contrary, no hostilities of any kind except in necessary self-defence, can lawfully be practised by one individual of a nation, against an individual of any other nation at enmity with it, but in virtue of some public authority. War is instituted for national purposes, and directed to national objects ; and each individual on both sides is engaged in it as a member of the society to which he belongs, not from motives of personal malignity and ill-will. He is not to fly like a tiger upon his prey, the moment he sees an individual of his enemy before him. ' Such savage notions I believe obtained formerly — thank God more rational ones have succeeded. Even in the case of one enemy against another enemy, therefore, there is no color of justification for any ofiensive hostile act, unless it be authorized by some act of the Government giving the public constitutional sanction to it." In the case of Little vs. Barreme, also decided in the Supreme Court of the United States (1, Curtis, p. 465), Chief Justice Marshall, admitted by my learned friends to be a high authority, held that instructions frofn the President to the commander of a public armed vessel of the United States, to do an illegal act, do not justify the ofl5cer in doing it, nor so far excuse him as to ex- empt him from paying damages. In rendering judgment. Chief Justice Marshall said : " I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of / i' ! I ' I- m T r F ■ W: ■I m. I 9:- 310 the Executive could not give a right, they might yet excuse from'' damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers ; and between proceedings in the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, it" not to do a prohibited ad, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly in- clined to think, that where, in consequence of orders from the legitimate authority, a vessel is seized with the pure intention, the claim of the injured party for damages would be against that (Government from which the orders proceeded, and would be a pro- per subject for negociation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act, which, loithout those instructions, would have been a plain trespass.''^ These authorities I confidently submit to your Honor's judgment, and in refutation of the absurd and happily exploded maxim, that- every injury inflicted by one enemy against the person of another enemy in time of war, and under pretence of war, is justifiable. The next case to which I shall refer is that of McLeod, so much relied on by my learned friends, and with it I intend to close my observations upon this branch of the case. McLeod, it is well known, was arrested in the State of New York, in the month of November, in the year 1840, because of his supposed participation in the destruction of the steamer Caroline, and the killing of one Durfee. Now, the circumstances under which these acts were committed were very different indeed from those which we are investigating. Between the burning of the Caroline, the killing of Durfee, and the robbery of Breck, and of the banks, the murder of Morrison, and the wounding of several other persons at St. Albans by the prisoners, upon the 19th day of October last, there is not the least analogy, absolutely none whatever. The de- struction of the Caroline was an act of public force, done by the com- mand of the British Government, and all that McLeod did in it, if anything, he did by the express command of his superior officer, and in compliance with the order of his own Government. The Caroline was destroyed in December, 1837, and from the published accounts of the transaction, we gather, that after the re- bellion which, during that year had broken out, had been suppres- sed, a small band of Canadian refugees, who had taken shelter in my the the ns at last, de- com- it,if ,and the |e re- Dres- 3r in 311 the State of New York, formed a league with a number of other evil disposed persons, for the purpose of invading the British terri- tory, not to join a party engaged in civil war, — because civil war at that time in Canada there was none, — but in order to commit within British territory the crimes of i ery, arson, and murder. After some days' preparation, these people proceeded to invade and occupy Navy Island, and part of the British territory ; and having engaged the steamboat Caroline, which, for their special service was cutout of the ice in which she had been enclosed in the port of Buffalo, they had used her for the purpose of bringing over to Navy Island, from the United States territory, men, arms, ammunition, stores and provisions. In consequence of these preparations, the British authorities stationed a military force at Chippewa, to repel the threatened invasion, and to defend Her Majesty's territory. The commander of that fort, seeing that the Caroline was used as a means of mpply and reinforcement for the invaders, who had occu- pied Navy Island, judged that the capture and destruction of that vessel would prevent supplies and reinforcements from passing over to the Island, and would, moreover, deprive the force on the Island of the means of passing over to the British territory on the main- land. Accordingly, on the 29th of December, 1837, an expedition of seven small boats, and sixty-three armed men, was fitted out at Chippewa, by the direction of Col. McNab, (who was lawfully in command of Her Majesty's forces at the last named place, and vested with full authority to do so,) and commanded to take the said steamboat by force, wherever found, and to bring her in or destroy her. By this expedition, in which McLeod was engaged, the Caroline was captured and destroyed, and in that capture Durfee lost his life. Hence the subsequent arrest of McLeod. No sooner, however, was this arrest made known, than his immediate tiberation was demanded by the British Government. The grounds, said Mr. Fox, (the then . British Minister,) addressing himself to Mr. Webster, " upon which the British Government make this demand, are these : that the transaction, on account of which McLeod has been arrested, and is to be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by Her Majes- ty's Colonial authorities, to take any steps, and to do any acts, which might be necessary for the defence of Her Majesty's territo- ries, and for the protection of Her Majesty's subjects ; and that consequently those subjects of Her Majesty who engaged in that transaction, were performing an act of public duty, for which they •annot be made personally and individually answerable to the laws and tribunals of any foreign country." To this demand, Mr. Webster replied in these words : — " The Government of the United States entertains no doubt that, after i if I. I i ''•S'i 'II m i l^ "' fc^^ ^ul^ comuiissioned and cntitlod f„ H ™"'""""lei- of the partv "i. Besides, l,is act was not "neh' ^„"'" '■'■■.™S"i«''" "fa bem.tcT.t ihc progress of civiliVoHnn f « . "^''*"^'nic warfare sav^ • to soften the extreme sv;r!,fTl '^ ^"* ^onstantirtenYeci thd tho "^"""^ "nrelaxed'^in re:o:^t"'""•^'^^^''^^^"- ^^lcJl the private pronerfvnr/i ^^^^^^^ ^o maritime warfare hi port, IS incliscriminLTl^ble t.'^r"^ '"^^" '' ^'^ or a£ nequality in the operatln of thlj.^^^T '"^ confiscation This J^as been justified by alle^^ ' ]''' ""^ ^'^'^ ^'y I«nd and by se^^ Perty when captured in ddfs 1 P '^ ^«»«^^l«ring private nro' tJ^e object of maritime waJ is ttj ^'? '^'^'-^^ ^ooty/ Wl ereaT ^nerce a.Kl navigation, he siul. ''i'"^^^"" ^^ *''« enemy' com ^vhieh object caSonly'be atTaS r^i^'^'^^'^^fhis naval poweT of private property. ^ ^"^^ned by the capture and confisSn' J^ne second new fir>f r. n^otv'r-^''™™' r^ty^ bv the learned Counsel ZauZ '"!r"' '" ^« *at t£ did It a^.^*" P^r°^^^ had ast one. No anmJ'J°^'^^^'% ^s<»-hon, appl-oaehes T h 3 onera m going to St. ^IbTns f ' wfs if "^.' "''><" ^ad the pr ! ' said, or can it be believed Ti, * V^ " ""' '0 steal ? Shill it v,„ not intend doing so 'J-!;' -^k* "''<'" ""=7 robbed Breck thev ? 1 fl i f: 1 1 15. .1- i. f-13 ' t' ^\ ' m] ! 1 - ^ il ( :' I 314 cape with their plunder, that they did not know what they wero about ? Can it be believed that when Young and his party murdered Morrison, shot Huntingdon, and wounded several other citizens of St. Albania, they had no criminal intent ? Truly, it is painful to be obliged to listen to, and to answer such unfounded arguments ; but the real fact is (and it is not a new one), that it Avould seem as if we met here to waste time, and, as I have before stated, to trifle with, instead of honestly to fulfil, our Treaty engagements. Yoimg and his accomplices had no criminal intent m their St. Albans ope- rations ! If this be true, why is it that up to this hour they have not made restitution ? What have they done with the stolen money ? If they are the honest, ui)right men their Counsel reprtdent them to be, they ought not to forget the favors which our indulgent citi- zens daily lavish upon them. They should not oblige us to pay their debts. Fifty thousand dollars — the sum voted by Parliament to be refunded to the St. Albans banks, in lieu of the amount, a part of the proceeds of their robbery, taken from Bennett II. Young & Co., in this Province, and subsequently, by an act of fraud, re- stored to them — is rather too much to pay for the honor of their ac- quaintance. No writer, says Mr. Laflamme, has yet ventured to say that the prisoners should be extradited, by reason of the crimes charged against them. Again, I say, he is mistaken. With very few exceptions, every newspaper published upon this and the other side of the Atlantic, has denounced the savage deeds of his clients. For instance, the London Post (Government organ, Dec. 29), in a lengthy article upon the subject, says: — " That these "raiders" really come within the terms of the Extradition Treaty, there can, we conceive, he no manner of douht ; although an attempt was made to release them from custody, before the pretext of the badness of the warrants had been set up, on the ground that they were recog- nized belligerents, whereas the articles of the Treaty spoke only of ordinary depredations. Such a pretence will not hold for a moment. The Federals, indeed, quite as much as ourselves, have recognized the Confederates to be belligerents, and they have invariably ac- knowledged them to be entitled to the rights of war as against the Federals themselves ; hut ivar is only war when it is waged either from the open sea, or from territory belonging to the attacking bel- ligerents. If, in the course of the recent Danish war, Prussians had secreted themselves on the shores of Norfolk with the view of making an attack upon Jutland ; or, vice versa, Danes had proposed an attack upon Prussian seaports from Yarmouth or Hull, we should certainly have arrested them without any special treaty of extradition." The London News (20th Dec), referring to the St. Albans raid, says : — " We are bound to shov7 the example of doing as we S ! ,1 were dcre'l ens of 1 to be J ; but n as it' o trifle Youni^ nd ope- ly have nonoy 't it them jnt citi- to pay rliament nouiit, a ;. Younj5 raud, re- thcir ac- itured to [\e crimes nth very the other 18 clients. . 29), in 'raiders" fiere can, jas made [adness of ^re recog-^ ^e only of moment, jcognized [•iably ac- rainst the ]ed either \cJcing hel- Iprussians ]e view of proposed Hull, we treaty of It. Albans ling as we 315 would be done by ; and as wc have in former times uttered kecii remonstrances, and even resorted to actual force, when an enemy used neutral soil to prepare machinations af:;anist us, it is impera- tive that we should now vindicate our fair dealing and maintain our friendly character, by prohibiting absolutely the abuse of our pro- tection for the purpose of directing treacherous violence against tho inhabitants of a bordering and allied State. We should expect Franco to do thus much for us if wo were unhappily at war with America, and Americans plotted and directed from Calais expedi- tions to sack Brighton or burn Hastings. AnYritten ng under ,n attempt y of New lucceeded, people of brtune — a that some ,f this dia- jir partici- [n of New Southern lo a certain hat any of tiders, and of mihtary srmitted to denounced the capital around us ork incen- al, and be those who •eatness of Why any [e interests jontinue to lly we arc intimately connected. And surely it is not wise, it is not prudent in us, who have so much to gain by maintaining unbroken the friendly ties that unite us to the great RepubUc, rudely, nay violently, to tear to pieces the bond of friendship that has for so many years secured to us the blessings of peace and the enjoy- ment of an uninterrupted reign of prosperity. I beseech your Honor to reflect well and seriously upon what you must know will be the inevitable consequence of the prisoners' discharge. Remember, if you set them at liberty, you justify, so far as you have it in your power, the atrocious crimes committed at ►St. Albans ; and again open the door to a repetition of similar of- fences. Discharge those prisoners, and others will be found ^Yicked enough to imitate their example. And Avhat will be the result ? Can you suppose for a moment that the United States will tamely submit to see their citizens on the frontier, robbed and murdered by Southern desperadoes, issuing from, and protected under the laws of Canada, without striking a blow ? Would we (juietly submit to such outrage under like circumstances ? Suppose, for example, that Ireland was in a state of rebellion against England, tbat twenty Irishmen during its continuance had crossed the Atlantic, had found their way to St. Albans, and from there had secretly intro- duced themselves into the city of Montreal, had robbed utir banks, shot down our citizens, and then fled with their plunder to St. Albans. What, I ask, would the law-abiding people of Canada say, if, to a demand for their extradition as robbci-.s and murderers, the United States replied : That the perpetrators of these crimes committed them Avithout criminal intent — that the state of war existing at the time between England and Ireland, sanctified their proceedings, and that as the accused claimed to be belligerents and asserted that they murdered and robbed the good people of Montreal in the name of rebellious Ireland, all further enquiry must cease, the Treaty never having contemplated the prevention of such gallant and patriotic achievements. Would we, I ask, rest content with such answer to our demand ? Or would we not, on the contrary, regard with abhorrence, nay, Avith the most profound contempt, the people and the judiciary of the country who enter- tained such perverted views of national obligations — who sanctioned such infamous outrages ? I would also beg to remind your Honor that although you have supreme control over this application for extradition, and may dispose of it in any manner you please, never- theless, the expressed will of the Government ought not, in a matter of this great national and political importance, to be entirely ignored. It may be said, and it is undoubtedly true, that the Judges of Canada are removed far above and beyond all Govern- ment influence, where it is to be devoutly hoped they will ever and •i Pj!1 : -i: I' I r.i| IJ;,J m m.v 318 always remain. But, as I have before stated, it is, and I say it in all humility, the duty of the Judge, particularly in matters affect- ing our political relations with foreign States, not to embarrass the Government by an unwise or injudicious application of the laws made and intended to preserve the national honor and the good faith of the citizens. I know that for the means adopted by the Legislature of this Province to guard against a repetition from within our lines, of St. Albans raids, the Government has been un- sparingly abused. But do not the authorities which I have had the honor to cite — authorities recognized as laws binding upon all civi- lized nations — fully sustain the precautionary measures so taken? Nay, I venture to go a step further, and say that our Government is entitled to the everlasting gratitude of the country, for the prompt and efficient means they have taken to ensure the maintenance of our neutrality laws, and the inviolability of Canadian territory. With these remarks I must bring my argument to a close, and leave to my learned associates the completion of the task, my part of which, I greatly fear, I have but very imperfectly performed. To your Honor's sense of justice I commit the case so far as I am concerned, expecting from you whose judicial attainments are of so liigh a character, a judgment that will reflect honor upon the judi- ciary of the country, and redeem us from the imputation of having so far failed to fulfill our Treaty engagements. In the Avords of the eminent Judge Jay, let us be faithful to all — kind to all — but let us bo just to ourselves. m.- March 22nd, 1865. Mr. Bethime, Q. C, (on behalf of the U. S. Government): — It has been a matter of much surprise to myself, and I have no doubt has been so also to your Honor, that in neither of the addresses of the two learned Counsel who have spoken on behalf of the prisoners, has there been any attempt either by argument or authority, to prove that what was done on the occasion here in question was a legitimate act of war. To supply the place of such argument or authority, w^e have been favored with citations from books, to the effi^ct, that in general it is lawful for one belligerent nation to kill members of the other belligerent nation, and to seize or capture their property, and with the assertion, oft repeated, that in all that occurred at St. Albans on the 19th of October last, the prisoners acted under lawful authority. In the absence of such argument or authority, I might be content to rest this branch of my case, relying on the weakness of my adversary ; but, as I consider this point of vital importance in the present discussion, and as I am resolved, to the utmost of my power, to strip the 819 it in Efect- a the laws good ly the from 3n un- ad the 11 civi- taken? rninent prompt ance of )ry. )se, and my part L'formed. as I am are of so the jxidi- pf having words of all— but 1865. deft ce of even the semblance of legal anthority, I must crave the attention of your Honor for a few moments while I read to you the opinions of some of the most eminent writers on International law, on the subject of the rights of nations in war, and as to what they have a right, or are allowed to do to the enemy's person and property. The Counsel then read from Vattel, book 3, ch. 8, sec. 138, 172, 173, 191, 192 ; Martens, book 8, ch. 3, sec. 4 ; Manning, p. 136, 139 ; Poison, sec. 6, arts. 12 and 13 ; Woolsey, sec. 119, p. 205, sec. 120, p. 205, sec. 125, p. 214, sec. 129, p. 220, sec. 130, p. 224, 225, and note; 1 Kent, pp. 91, 92, 93; Lawrence's Wheaton, p. 586, 591 to 601 and 626; Ilalleck, ch. 17, sec. 2, p. 412, ch. 18, sec. 3, p. 427, ch. 19, sec. 12, p. 456, and sec. 13, p. 457 : — The case of Burley in U. C. These authorities establish, that according to the recognized rules of modern warfare, the property of private persons or non- combatants is exempt from seizure or confiscation, except in the special cases of penalty for military offences, of forced contribution for an invading army, or as an indemnity for the expenses of main- taining order and affording protection to the conquered inhabitants, and of taking property on the field of battle, or in storming a fortress or town. And in all these excepted cases, the action of armies or parties of men openly acting in the character of armed enemies is alone contemplated. Now, in the present case, the facts disclose merely that the pri- soners and their associates, secretly introduced themselves into an unarmed town, at a point far removed from the scene of hostilities, and there, in the garb of citizens, entered certain banks in open day; and, when all others but themselves had retired, suddenly dis- played fire arms, and robbed the banks, and the individual Breck, who happened at the time to seek admission into one of them, for the purpose of retiring a note. It is true, that in acting as they did, they claimed to be Confederate soldiers, and that in the streets they affected to take prisoners, and discharged their fire arms, wounding one man and killing another ; but, once the booty was secured, they all decamped on the horses which they had also stolen, leaving their so-called prisoners free. In all this we see nothing of the characteristics of war, and fail to discover any other object than robbery and plunder, under pretence of war. No one could seriously contend that such an act was jt?er se an act of war. To all appearances it was nothing more or less than a common rob- bery, accompanied by a murder, and an attempt to murder. The only pretension that can be urged is, that in consequence of the alleged commission and instructions produced by the prisoners' Counsel, the act was constructively one of legitimate warfare. ;■ I m. i ll ,1' 4 •«" H:.'^: ife^ m 320 To maintain such a proposition, however, it would be necessary that the commission and instructions should, at the least, specifi- cally authorize the commission of robbery and plunder. Now, in the so-called commission of Bennet H. Young, he is merely noti- fied of his appointment as a lieutenant in the provisional army of the Confederate States, and in the three letters of instruction, or what some of the witnesses called details, of the same date, he is merely requested to organise a body of men " for special service,'* and " execute such enterprises " as might be indicated to him, either by C. C. Clay, jun., in the one case, or Thompson & Clay in the other, — and, in the alleged instructions from Clay, it is stated, that he is authorized to act in conformity with a suggestion made by himself (Young), "for a raid upon accessible towns in A''er- uiont." The "special service," "enterprises," and "raid" here referred to can only be legally held to mean those of a military character and such as are recognized in modern warfare, and cannot, by any ingenuity of argument, be held to extend to the robbery and plunder of banks and private individuals. But, even on the assumption that such acts as robbery and plunder were really intended to be included, I entirely deny the power of any Government to authorize such acts, and challenge my learned friends upon the other side to cite a single authority to support so monstrous a proposition. To afibrd them an opportunity to do so, I would refer your Honor to their favorite author, Lieber. At ])ages 16 and 17 of his treatise on guerilla parties, he says : " There are cases in which the absence of a uniform may be taken as very serious prima facie evidence against an armed prowler or ]narander. * * * It makes a great difterence Avhether the absence of uniform is used for the purpose of concealment or disguise, in order to get by stealth within the lines of the invader, for the destruc- tion of life or property, or for pillage. * * * Nor can it be main- tained in good faith, or with any respect for good sense and judg- ment, that an individual — an armed prowler — shall be entitled to the protection of the laws of war, * * because his government or chief has issued a proclamation, by which he calls on the people to infest the bushes, .fcc." And at pages 81 and 85 of the " Trial of John Y. Beall," we find a letter from Dr. Lieber, of date the oth of February, 1865, in Avhich occur the following significant remarks, which he says he would certainly propose to add to his work in a new edition : " I ought also to have given something on enemies who in dis- (/uise come from the territory of a neutral to commit robbery or murder^ and those who may come from such territory in uniform. " I do'nt believe that such people, now called by the unacceptable term raiders, have ev&r been treated of by any writer. •mm^ jcessary , specifi- Now, in ely noti- army of ction, or te, he is ervice," to him, Clay in 3 stated, on made in Yer- d" here military ire, and d to the . But, plunder power of ' learned ipport so to do so, 3er. At le savs : be taken •owler or ! absence guise, in destruc- be main- nd judg- ititled to /^ernment le people e " Trial date the ignificant Id to his .0 in dis- ohhery or iniform. cceptable 321 mJf ,>, 1 o"»S'(- into the counti-v nf +i, • ^ -^ -^J^ietid/?/ powor "»it murder or rohhomr /^i """J oi their cnemv 'inrl fi ^ *^*^^5 nsoleiipo T ^^^Z y ^^^^^ c^'^se of the St A u^' ■. *"^^^ ^om- ^ouitace — 1 use the tei-m nn», • . Albans raiders^ Ti IS proved fn ho T*' '^anada ; and ina'^mnr^v, „ i.i •'^ violation celled lot t; tr oriff f '" ^^^^r:Lix sf '"" ■ therefore, in viohfm'n ^i- 1^^ ' ^'^^ pwsoners actr^d in ^ ® »pl.ist.7, unaided b; ^l^^li"";' ™ «'« 6th of OcSe ' t ° ''T *^.: i :]'•■ ■■ ]■»■■ w mi] ■ ^w 1 j IV^H 1 ' Pi ■:-li , 322 from the category of the crime of robbery, in which it Htanda prhnd facie, installed. The argument of my learned friend, Mr. Laliamme, that the fact alone of Bennett 11. Young being a commissioned officer, and of the other prisoners being Confederate soldiers (even presuming them to have been such), was sufficient authority, is entirely at variance with the well-recognized principles of interna- tional law ; and is completely contradicted, not only by his favorite author, Dr. Lieber, but likewise by another, whose work he cited at page 248 : I refer to Lawrence's Wheaton, and specially to the foot-note at page 248 : " Where persons acting under a commis- sion from one of the belligerents, make a capture ostensiU// in the right of war, but reallij with the design of robber//, they will be held guilty of piracy." It is manifest, therefore, under any hypo- thesis, that unless the special instruction invoked amount to a positive order to commit robbery and pillage, the prisoners were absolutely without lawful autliority. I now propose to show that the special instruction in question can have no legal elfcct whatever in the present case. In the first place, it is to be noted, that it is to the last degree unofficial and unauthentic in its character, and is not proved to have been written on the day it purports to bear date, a fact of vital importance to its legal apphcability to the act in question, especially in view of tlie evidence of Mr. George N. Sanders, which, if it does not actually establish that the document was only written in the early })art of December last (long after the raid was committed), at least taints it with so much suspicion, that it is quite out of the power of your Honor to hold in the absence of any direct testimony as to its exist- ence in October last, that it was executed on the day it pui-porta to bear date. Mr. Sanders, it is to be borne in mind, was notori- ously a confidential agent of the so called Confederate States, and we may therefore fairly presume, that in the conversation he had with Mr. Clay, when the latter " said he would leave such a letter as the paper P" (the special instruction in question), and by which statement Mr. Sanders adds '■^I iifer it had not beenwritten up to that time,''^ Mr. Clay disclosed all that he knew in favor or mitigation of the act of the prisoners. It is to be noted, that Mr. Clay carefully abstained from saying, that Young had his special authority iii writinj to organize and carry out the expedition in question, and merely stated that lie would leave such a letter as would establish his assumption of " the responsibility of the raid." It is true, that when Mr. Sanders' attention was subsequently ex- pressly called by Mr. Laflamme to the date of the letter P, he gives his opinion that the pai)er P was not the letter ]\Ir. Clay promised to leave. As the date was long antecedent to the period of the con- versation, this remark of Mr. Sanders was, under the circumstances, 323 II yrimd immc, sioncd (even ■ky, 13 itevna- avovite c cited r to the jomniia- y in the Avill he int to a CVS ^vcl•e stion can the fivst ricial oud n\ written iWicc to its .w of the [t actually ly part of ■ast taints .r of yonv lo its cxist- It puvpovtB Ivas notori- ttates, and Ion he had [ch a letter aud_ hy \een ivritteii in favor or ,, that Mr. Ihis special sedition in [a letter as the raid." nuently ex- P, he gives ly promised of the con- umstances, only a natural one to make, and cannot destroy the value to be at- tached to his former statement, wliicli had been made afto' r.vatnin- ing the paper, as is apparent from the first portion of bis evidence where he claims to j)rove the authority and status of " (,'. C. Clay, whose name is subscribed to document P." Tbe (nily letter, niore- ovcr, to which Mr. Clay made allusion was one be was to leave. Now, when it is considered tliat tbe prisoner, Youn^, lailed to pro- duce this document, when bo made liis voluntary examination, as the special authority under which be pretended to act, and tbat it was produced at a late stage only of the proceedin;j;s, and tliat by Mr. Abl)ott, one of the Counsel (in whose i)ossession, Mr. Cleary swears Mr. Clay informed him sometime after the raid it was), and tbat no other letter is produced, tbe le<^al inference is overwbelmini;;, that tbe letter really kept by Mr. Clay was this document P, and consequently tbat it had no existence whatever previous to tbe 19th day of October last. There is, hi addition, another, and to my mhid fatal objection to this highly im})ortant doctunent. It purports to be, in tbe first place, a letter of manpie to counnit ])il- lage 071 land, a species of commission or authority unheard of in civilized war and therefore for that reason alone wholly ihegal ; and in the next place, — inasmuch as it was written in this country, — it claims for its writer tbe exercise of sovereign powers witliin tbe territorial jurisdiction of Great Britain ! — Xot only, however, is the document for these reasons utterly valueless, but there is a total absence of anything like evidence tbat Mr. C. C. Clay, junior, who thus claimed to exercise such extraordinary powers, was gifted or clothed with any authority whatever by the Government in whose name be claimed to act. It surely cannot be seriously contended, rbat tbe allusion to Mr. Clay in the letter of instructions signed by Mr. ISeddon (styling- himself Secretary at War) affords legal evidence of bis being possessed of any such authority. In tbe first place your Honor does not and cannot legally know Mr. Seddon in tho official capacity he assumes. In the absence of all recognition by our Government of the sovereignty or existence as a Government of the so-called Confederate States, the only person you could possibly accept as the apparently legal representative of such Confederate States, is the President or Chief of their executive power. And, under any circumstances, the mere informal and unofficial certificate of au- thority in Mr. Clay Avhich is claimed to be presumed by Mr. Seddon's letter, establishes no legal presumption that Mr. Clay was really vested Avith such authority. Apart from all these considerations, I would now submit with great confidence, that there is no legal evidence, that Bennett H. Young was a duly commissioned officer of the so called Confederate r I ?; w i! 1!'v- m- W-- \i} |v:.- i ■ ■ 'V 324 States, on the lO.th day of October last, and that tlic rest of the prisoners were on that day soldiers, owin^ allegiance to those States, and bonnd in the ordinary discharge of their duty, to take part in the expedition in (jucstion. The document j)roducod by Young, at the time of his voluntary examination, and which he calls his " commission as Fii-st Lieutenant in the Army of the Confederate States," is a mere letter^ signed by Mr. Seddon as Secretary of War, informiny him that the President has appointed him First Lieutenant, and further informing him, that should the Senate at tJinr next iSessioti advise and consent thereto, you will be commissionkd accordingly. The letter then directs him to communicate to the War Department, through the Adjutant and Inspector General's Office, bi/ letter, hh " ac- ceptance or non-acceptance of said appointment," and with such letter to return to the Adjutant and Inspector General the oath herewith enclosed, propcrlij filled up, subscribed, and attested. This document, at best, is a mere notification, that the President had selected Young for the post of a Lieutenant, and neither purports to be nor can be considered in any way to be a cominission ; the very document itself announcing that such commission could only emanate from the Senate. Then can it be said, in the absence of an actual commission, to be eciuivalent to one, seeing that the Senate was not at that time in Session ? — Had your Honor evidence before you, that the appointment had been accepted by letter, com- municated throuyh the Adjutant and Inspector GeneraVs office, and that witli sucli letter of acceptance, Young had transmitted to the Adjutant and Inspector General the OATH that was enclosed, properly fdled up, subscribed and attested, it is possible that this question might properly be answered in the affirmative. But, unfortunately for the baseless pietensions of the defence, although they sent a special messenger to Kichmond for the purpose of obtaining everything that Avas " necessary to establish the belligerent character of the prisoners, and that they acted under orders," who was in that city as late as the 4ih of February last, yet that messen- ger wholly failed to procure more than a copy of the above letter, and of one of the letters of instruction from Mr. Seddon, already alluded to, and copies of copies of certain muster rolls, all certified by a Mr. Benjamin, styling himself Secretary of War, and sealed with a seal purporting to be the seal of the so-called Confederate States, and wholly failed to briny any document whatever, much less any act of conJirmatio7i of what had been done at St. Albans, siyned or executed either by the Senate or The President of these so-called States. Applying then the well known maxim of law, — de non apparentibus et non existentibus eadem est ratio, (bearing in mind, as is abundantly proved, that the Senate was still in session when 325 [ the those take ntary cnant igncd it the •rming .e and I letter :ivough \ " ac- [\ such 3 OATH cl. •cs'ulcnt )urport8 m; the Likl only sencc ot [hat the 3vicleuce ,er, corn- 's office, litted to ;nclosec\, :bat this But, jlthough rpose of •lUgerent ," who messen- een done in the ease of IJurlcy, who, according to the Toronto '' Leader" (a recognised Confederate organ), lias been ordered to be tried for the crime of robbery " on which he was extradited," with an instructi(jn from Mr. Seward that " if acquitted he will have a safe convoy out of the United States," there is less cause for any real ajiprehension that the United States will abuse their treaty obligations. The last point to which I shall specially allude is the one ad- vanced by Mr. Laflamme, who seriously argued, that the aiihnus funindl cannot in any way be presumed, and nnist be proved. The point is so untenable, and the proposition enunciated, so entirely opposed to the first princi[)les of criminal evidence, that I shall refrain from citing any authority to disprove it. The maxim of law that " every sane person nnist be supposed to intend that which is the ordinary and natural consecjuencc of his own pvu-posed act" is too well known to need sj)ecial confirmation by authority. In bringing my remarks in this protracted case to a close, I can- not refrain from again urging u]»on your Honor, that the truly safe course to pursue in a case like the present, is to hold, in tiie lan- guage of all the judges in the Gerrity case, of Chief Justice Draper in the Anderson case, of Judge Ritchie in the Chesapeake case, and the four Judges who sat in the Burley case, that the questions of fact raised by the defence by way of justification of what prima facie is the crime of robbei-y, can only be legally tried and deter- mined by f iury in the country where the oftencc is committed. I therefore confidently claim at the hands of your Honor the commit- ment of the prisoners for extradition. Mr. Johnson^ Q. C, addressed the Court on behalf of the Crown. He said : — It was intimated by the Court at a previous stage of these proceedings, that the Crown, by its law officers, upon a question concerning the effect of a treaty, and tho application and efficiency of our own local laws, enacted for the purpose of giving efficient operation to that treaty, had a right to be heard. That intimailon of opinion so far as I myself, or any other profes- sional man is concerned, must meet, I apprehend, not only with realy acquiescence, but speaking my own opinion merely, and tha : of the learned gentlemen who, on behalf of the United States, are conducting this prosecution, and without knowing, or venturing .It ll' '{■'V Vtkf « f,'l m 11 * i' ■i ' 328 to enquire, what may l»o tlic notions entertained upon this point hy tlie k'arncd ;^entlcmen who ai)pePi' tor the prisoners, I feel hoinid to declare that the exeirise oi" that rii:5ht under the eircunistimced, seems to me to involve a responsihility which pu))lic duty will not permit me, it' I would, to avoid ; and that in this, as in all uther proceedini^s taken under the e.\i)res8 authority ot" Canadian Statute Law, the Crown is acting, ami it is not only its rii^lit, hut its clear and incvitahle (hity, to act, under a direct r('sponsil)ility to the people of t^'' ' country, for the marmer in which it seeks to apply that portion of the criminal law of the land which concerns and regulates proceedings of this nature. I never could clearly luider- stand how it came to l)e (piestioned, even in the excitement of the earliest stages of these ])roceedings, (and to judge from the remarks on that head made hy my learned friend, who on the hist occasion of your Honor's presence here, was the first to a(hlress you on hchalf of the j)ris(mers,) how it continues still to he ([ues- tioned, that the (Jovernment of this C(juntry has a right to dcnumd and contend for the execution of its own nnmicipal laws in the Courts of Justice in Cana(hi. It is very true that a foreign Gov- ernment is, in the present case, the prosecutor, or more correctly speaking, the complainant ; (for in strictness there is no prosecu- tion hefore us) ; hut that government is a complainant here, not for the purpose of trial and conviction ; hut for an ohject altogether preliminary, and strictly defined and limited hy the laws of this country — the ohject of ascertaining whether an offence of a certain description has heen committed, and whether there is prohahlc cause to believe that the prisoners are the ])ersons who committed it, and, as a legal consecpu^nce, are to be tried for it. The place of trial is not an element which can in the least disturb my reasoning upon this point of the case. In the instance of our own subjects, charged with offences against our own laws, our obligation to com- mit for trial, where we have the preliminary [)roof the law recjuires, depends on the duty of protection which all governments owe to their subjects. In the case of crimes committed in a foreign coun- try, towards which, we are under treaty obligations to surrender fugitives from justice, the duty of committing in the form pre- scribed by the Statute, depends of course upon the treaty and the laws for giving it effect ; but the nature and object of the encjuiry are the same essentially in both cases ; are directed to the same essential and important object ; are controlled by the same general rules ; and finally result in the same important end, viz., the trial in the country which has cognizance of the offence, of the guilt or innocence, of the party accused. I have heard much loose talk, suggestive of still looser notions about neutrality, hazarded on behalf of men who may perhaps be found, on examination by and I i.i: 1i« this u'tain )ablo (jccts, com- uires, )\vc to coun- euder n pre- id the 329 byo, not to have oh.scrvcd its rules very strictly ; but in truth tlio laws of neutrality neither debar us from ajtiR'alin;; to our own Courts to ])unish those who have conuiiitted breaches of these laws, nor from rcsortin;^ to those sanxf laws, w.icro we are rcfiuircd to do so, for the purpose of cxecutin;; a Ksolenui treaty. The duty of neutrality is l)in 1^ 330 justly liavc been amenable to the reproach of indifference, not only to the faith of treaties, but to the commonest obligation of duty towards the people of this country. If, may it please the Court, this case seemed to me to offer any occasion for forensic display, or in any possible aspect of it, cither in what has hitherto occurred, or may hereafter take place, it could aflbrd any ground for triumph, or even of satisfaction, I should be deterred from attempting the one, by the recent and still reverlicrating efforts and advocacy of the able and earnest men who have preceded me ; and should be at once prevented from indulging in anything like the other, by the reflection that, in a Canadian Court of Justice, there is, and there ought to be, no possible triumph but the triumph of truth ; and in any possible issue of this encpiiry, there must of necessity remain regret and anxiety on one side or on the other. On the side of those who complain, if it be found that our laws are powerless, to give effect to treaty obligations ; on the side of the accused, if, awaking suddenly to their true position in this most grave transac- tion, they should at last find that human laws are not playthings — that the obligations of nations are not trifles, and that in ap})lying to their conduct the surest principles of law, and the most un- doubted and settled rules of its administration in like instances, the color they have endeavored to give their acts, fades away at once in the light of lair enciuiry and consideration, and that the sternest aspect of criminal justice is alone suited to their case. Any topics of discussion that can possibly arise here, before your Honor, in the investigation of this complaint, confined as it is by law, to a preliminary enquiry, whether there is ground to commit for trial, can only be treated, as I understand the sr.bject, under three heads. First, the complaint. Secondly, the answer to it ; and Thirdly, the nature and legal limits of your power. I under- stand the cause of this enquiry to have been regulated by your Honor's expressed desire, that all the facts of the case, — all that the prisoners could reasonably contend to have any bearing on it whaf>- ever, should be laid before you, in order that you might have all that could possibly be advanced, as well by way of evidence, as of argument, in view, before pronouncing on the legal effect of any- thing that has been brought forward. This course, dictated pro- bably by a just regard for the rights of the parties concerned, and certainly evincing an indulgent and humane caution which I shall be the last person to deprecate, has left open for discussion all these questions, as nothing has thereby been decided, or intimated, as to the legal eftbct of such evidence, or more properly speaking, such informal information by way of evidence, as has been laid before your Honor. Upon the first point that I have suggested as proper for dis- 331 case. laid cussion here, there is little, I may say nothing ^-hatever to be observed. The charge of robbery, and the direct participation in it of all the prisoners, as ^voll as of some others not now before us, it was of course the duty of the complainant to es- tablish to the extent rc(|uirod by our own laws, in order to justify a commitment for trial, if the case had occurred here. That this has been done is uncontested, and indeed incontestible ; and no question has been raised or even sugj^estccl, that, but for the exculpatory testimony adduced on behalf of the accused, they must bo committed. If any such pretension could have been urged, it is not to be doubted that, at the proper time, namely — when the evidence for the complainant was over, and before applying for and obtaining a month's delay to procure Avitnesscs in excul[)ation, the al)le and astute counsel who represent the pri- soners would not have failed to discharge their duty in that respect. We come then at once to the consideration of the second point. What is the answer or defence of the accused to the charge thus avowedly proved against them, and l)y what ])roof and what support in law, is it attempted to be sustained ? Their answer, I take to be, in substance, this. The act that you, the complainant have proved, we cannot deny the fact, is there ; but the character that belongs to that act is not of tlie description that you contend for. You say it was robbery against tlie municipal laws of the State of Vermont. We tell you it was lawfid war. You claim to treat us as criminals ; we aver that we are soldiers, and that in what we did Ave acted as belligerents, and under lawful authority. This answer undoubtedly opens a wide field of examination, as well of the law affecting such cases, as of the particular facts that arise in this. I think, however, that the great ex|)ansion, or subdivision of propositions, which have been adopted on the other side, may be advantageously compressed, and restricted to the consideration of this answer, or explanation, or whatever we may call it, under two heads. First, is it war, open and visible, in its external characteristic, and its presumptive appeai-ance ? And, second, is it Avar, Avhether apparently so or not, under the peculiar circumstances that have been laid before the Court. As far as external appearances are concerned, to conclude only from Avhat Avas described to us by the eye-Avitnesses of this proceeding, that it Avas a Avarlike operation may, I think, be fairly said to be impossible. If conunon sense Avere not quite a sufficient guide, by itself, to conduct us to this conclusion, the authorities already cited by my learned friend ]Mr. Bethune are upon this point conclusive. Vattel, Martin, Manning, Poison, Woolsey, Kent, Wheaton and Ilalleck concurring, as they have been shown to do, upon such a point as this, may safely be deemed sufficient autho- rity, to guide us to the decision of Avhat is, and Avhat is not, consid- * H! i' .'■'■ ,1; 1 ■! ■ ■ w i i % '»',;• ' '1 ■■ :. ii'\ iy - i ,'"-M M i-J .1 ilif^Wil!^ : 332 ered upon general principles to be an act of war. One of the learned counsel has, however, upon this part of the case offered some lengthy observations upon the doctrine of intent. With that doctrine every one, I take it, wlio has practised in Criminal Courts, must be supposed to be tolcral)ly conversant. The most obvious and easily applied rule upon that subject, I will take the liberty of quoting from one of the most familiar criminal books, Archbokl'8 Criminal Practice and Pleading, 1 vol. p. 392. I ([uote from the latest edition of Archbold in two volumes, with Waterman's notes : " Another mode of judging of the intent is by presuming that the " party intended that which he effected, or that which is the natural " consequence of the act with which he is charged. If the natural " consequence of his act would be the death of another, a jury may " fairly infer from the act that it was done with intent to kill. If " the natural consequence would be to defraud another, a jury may *' fairly infer an intent to defraud." Now let us apply this common and obvious doctrine to the case l)efore us, or rather to that parti- cular part of it I am now discussing. What is the natural conse quence of robbing Mr. Breck ? Is it that the national power of the United States is prostrated, or in the remotest manner aft'ected by it. The natural consequence is that Mr. Breck loses his money ; but it recjuires a great deal of imagination to conceive, and a goo('. deal of ingenuity to exi)lain, how that fact tended to exhaust the national resources, or attack in any manner the national existence. In touching upon this part of the case it is impossible not to feel the necessity of imposing some limit to what may, with any appearance of reason, be alleged to be an act of war. If these prisoners, instead of using violence and terror to get this poor old man's money, had used stratagem ; in other words, if instead of openly robbing him, they had picked his pocket, would that be contended to be an act of war too ? I must suppose from the course of the argument on the other side, that it Avould be held ; and indeed it must be so held, there can be no doubt, if the act taken by itself, or merely accompanied by the declaration of the thieves, that they, as Confederate soldiers, can be held to confer upon the actors the conclusive character of persons performing a lawful warlike exploit. The truth is that, though all authorities denounce it, the practice of taking private property in war, or of inflicting unnecessary injury upon unarmed and inoffensive indivi- duals, is a practice (and that is the utmost that can be said for it) that may be admitted to have been in some cases, an incident and a forbidden incident of war ; but it is not, and never with reason can be contended to be, an act of war in its own nature. I gather from some part of the testimony — I forget whether it was in this case of Breck, or in some of the previous proceedings — that there \ i !■■' Pt of the offered ith that Courts, obvious )crty of ;hl)oia'3 ■om the I notes : hat the natural natural iry may dU. If iry may common at parti- il conse jr of the !Cted hy money ; \ a good aust the dstcnce. » feel the )carance risoners, d man's f openly intended Q of the deed it [iken by thieves, confer brming a Ithorities |ar, or of indivi- Id for it) Ilent and |i reason gatlier in this lat there i 333 ■was, at or near St. Albans, an arsenal, or some such national structure, and in the town itself, one and only one, soldier. These opportunities of glory and destruction are, however, neglected. The arsenal and the soldier are, strange to say, both untouched, and poor old Mr. Breck is made to play a part in the history of modern war, which must have surprised him (luite as much as it has surprised me, and the rest of the world, who had perhaps formed somcAvhat different notions of warlike achievements and martial glory. I will not stop now to discuss very minutely the contents or the dates of the various documents that have been put in on behalf of the prisoners. Their legal effect I shall notice when I come to another part of the case. The question, too, of whether these documents prove anything at all ; whether Young can, under the circumstances contended for, be considered to have held a com- mission at all, and whether the others, all proved to have resided in this Province, for some time previous to this outrage, had really preserved the character of soldiers, supposing them to have had that character previously, and can be considered to have been so, in any intelligible sense, at the time this offence was committed ; these are points which I am quite content to leave where they were left by my learned friends who are acting for the United States Government. To notice some of them, might perhaps be said to be descending to small points. It may be so ; and yet the necessities and exactitude of legal i)roceedings may recjuire it. What indeed were the points upon which all the celebrated modern cases of ex- tradition have at last turned, except points of the narrowest and most technical description ? Take Bissctt's case ; take Anderson's case ; take the famous case of the Chesapeake ; or come down still later to the case of the Gcrrity. U})on Avhat points were they all finally disposed of, but on those of the very narrowest form ? The three first for defects — which may almost be called clerical defects — in the warrants of commitment ; and the last upon the not much broader ground, that the piracy alleged and proved, was not the particular kind of piracy intended by the treaty. I feel, however, that upon this part of the case it cannot be necessary to enlarge ; — that the idea of this enterprise presenting in itself any sign of law- ful Avar, is untenable, and utterly unAvarranted by the evidence. We have all heard, both in fable and in history, of instances of self-arrogated importance : Ave have read in our youth of the fly upon the Avheel, and the frog that endeavored to distend its dimen- sions to those of the ox. We have read, too, in modern history, of the tailors in Tooley Street, Avho called themselves the people of England, and proceeded to alter the constitution of the empire ; — but none of these instances can excel in ludicrous extravagance the pretence that, in going to a bank, in the middle of the day, in a ■tU f ti m n I :',f . ^ I' I r ,■. ■ m 334 peaceable village, and casing an old gentleman of two or three hundred dollars on the threshold, the prisoners can bo ])resnmed, or believed to have acted as a military force — having lawful au- thority from a brave an Wendell (admitting with Judge Cowen. that acts unlawful |>tT seare alike unlawful in the Sovereign, and in the subject, adopts also Judge Cowen' slanguage, and states the rea- son to be, " that where he has no authority, there he is no king, for wheresoever the authority ceases, the king ceases, and becomes like other men, who have no authority." The language of Chancellor Kent, which has been cited by my learned friend Mr. Bethune, to ex- plain the citation of the same author, at the same page, made by my friend Mr. Kerr, is eijually plain and explicit. He cites the authority of Sir W. Scott, and says : — " In the case of the twee Ge breeders (3 Robb, 336) it was explicitly declared that no prox- imate acts of war are in any manner to be allowed to originate on neutral ground ; and for a ship to station herself within the neu- tral line, and send her boats on hostile enterprises, was an act of hostility much too immediate to be permitted. No act of hostility 841 (ssible s. and of the ted on >n, the If, and icutral ,ves of ar two ih your } Court , as far hey are and the icy are conclu- orij^ina- mstance 7, s. 84, uitry, or rritory," 1 the fact I (5 Rob. enemy's ■rcisc the or in the Ic. 8. rule that Is is abso- s review, •e Cowen. gn, and in the rea- king, for jmes like hancellor jne, to ex- de by my Icites the the twee no prox- ;inate on the neu- bU act of hostility is to be commenced on neutral ground. No measure is to bo taken that will lead to violence." '" There is no tx'-eption to the rule that every entrance into neutral territory, with hostile j)urj)Ose, is absohitely unlawlid. The neutral border must not be used as a shelter for niakinif preparations to renew the attack. This would bo making the neutnd country directly auxiliary to the war, and to the comfort and support of one party." 1 Kent, p. IilIO. The same doctrine is contained in Wheaton, p. 713, and at ]>. 717 of the same book, the author, admii'in^ that it does not apply to re- mote and innocent uses, such as procuring provisions, lays down that it is in no case to extend to any ]>roximate act of war whatever. In the present case, not oidy was a proximate act of war committed, but the direct and only orighi or authority for this enterprise is proved by the prisoners themselves to have emanated fro-.n a person residing in this country. If any doubt could exist upon this part of the case, that doubt would surely be set at rest by a reference to the recent case of Burley decided by the two Chief Justices of the Queen's liencli and Common I'leas, and two Judges in L'tper Canada. This case is so recent, so directly in point, and so decisive of the cpiestion I am now discussing, that any extended or argumentative reference to it I feel to be ({uite uncalled for. The gist of that case, however, the point of all others, upon which all the judges clearly indicated a perfect unanimity of opinion, was exactly the point which I have been endeavouring to lay before the Coiirt, in the |iresent case, viz. : that the inception, or carrying out in any manner of such a project from neutral territory of itself deprived the eiite^'jirise of a character of lawful hostiliti/. So solemn and decisive a judgment, pronounced by judges so deservedly eminent, and after the fullest argument of every point, which tiie self-respect of the profession in Upi)er Canada suffered counsel to raise, was felt, no dovd)t, by my learned friends, to be a matter which they could not refuse to notice ; but which at the same time, they were (juite unable to dis- pose of, in the ordinary way of treating judicial decisions ; so, instead of havhig any answer attempted to the reason, or the principle of that decision, we have been obliged to content ourselves Avith hearing the Bar and the Bench of Upper Canada assailed and de- preciated in a peculiar style, which I trust those learned persons will not believe to be usual in the practice of the profession, in this part of the Province. But apart, may it please your Honor, from all judicial decisions : apart from all ew i>r(fexi«) writings and opinions, we need not go further than our own criminal law to ascertain tue true character of such enterinises undertaken upon our soil, and to I: >«'. I m % 'A' - %. sa tisfy ourselves that they are plainly denounced as unlawful. That under the common law in some cases, and by express statute in others, ,«, I ! t\ A n^ 1 » ■HI 342 thoy arc subject to inilictment. If then this be law. tlicrc is an end to tliis part of the case ; and it remains to be shown liow Mr. Chiy by coming into our country and settin;^ its hiws at defiance : how by coming here and in his own person conunittin^ an indictable offence, and as respects his associates, cansinii; them to connnit the like offence, he can confer upon his actions, or njion theirs, the character of lawful authoi'ity. It remains to be shown, I say, that Avhat in the cases (jf all persons indiscriminately, whetlicr foreij^ners or not, is directly forbidden, declared to be unlawful, and i)iuiished accordin;:ly, becomes lawful, when instigated by Mr. Seddon, and actually practised by Mr. Clay and his accomplices, the nnfortmiate men liefore the (,'ourt. l>efore taking leave, however, of this part of the case there is a very hi;^h authority, a))d a very recent one, which I lind printed in the pamphlet conUiininii; the trial of John Y. Heall. It is the authoritv of Dr. Lieber contained in a letter read by the Jud;i;e Advocate u])on that trial, to establish points not arising in the jiresent case, it is true; l)ut it incidentally touches uj)on the point we arc now considerin;:;, and in the followin,^ words dis[)oses of the le;^al character of such enterprises as this upon general principles : *■' I ought to have given something on enemies who in disguise come from the territory of a neutral to commit robbery or nuu-der, and those who may come from such territory in uniform. I do not believe that such ])eople now called by the unac- ceptable term " raiders " have ever been treated of by any writer. The thing created no doubt in the mind of any one. They have always been treated as brigands, and it can easily be shown upon principle that they cannot be treated otherwise. Never, so long as men have warred with one another, and that is pretty much as long as there have existed sufficient numbers to do so — has any bellige- rent been insolent enough to claim the protection of the laws of war for banditti Avho take passage on board a vessel, and then rise upon the captain and crew, or who gather in the territory of a friendly power, steal in disguise into the country of their enemy, and there connnit murder or robbery. The insolence — I use the term in its scientific meaning — the absurdity and reckless disregard of honor which characterize this proceeding fiiirly stagger a jurist or student of history." This is the language of the eminent Dr. Lieber, an autho- rity aamitted to be of the highest character by my learned friend, Mr. Laflammc, who was himself the first to cite the work in support of the position which I do not contest, that as between armies in thefield, the laws of war alone apply. The insolence or non-insolence, that is to say, the unused and unheardof character of such proceedings, is doubtless the reason Avhy no writer, as Dr. Lieber says, has ever considered it worth while to waste paper or time in describing, or in any manner dwelling upon, what is in itself obviously unjustifiable. 343 Here then I fool I may safely leave this most importatit and raper, with reference to the case of a party ac ".^'m1 of murder, in order to justify it, observed : " If there is a quesi r of fact to be tried, I apprehend be must be surrendered, an such a question can onli/ h tried in the cnuntry where the fact arosi'.^^ In the Chesapeake case the same question was incidentally dis- posed of. Tl o counsel for the prisoners was proceeding to comment on the evidence of authority from the Confederate Government, when Mr. Justice Ritchie observed : " Assuming, as you must do at this stage of your argmnent, the correctness of the proceedings against the prisoners, and the magistrate's jurisdiction of the oifence, do not these questions fall within the province of the Superior Court on the trial of the prisoner '! Is it not the magistrate's duty now il i[i J; 344 fe'' ''"^ merely to see if a preliminary case is made out ? I think avo must act in this case just as if it Avas an offence committed here. The question is, Avould I, on the evidence, commit for trial in this country ? If so, must I not commit the parties for extradition V (^Coiinscl.^ " In Anderson's case ^ prhna facie axAo was made out, but the jirisoncr was discharged. And so in U.S. vs. rainier, 4 Curtis, ol4. Parker is found in command of the Retribution, and Braine and Parr actin;^- under him." {Jiitchie, J.^ " I think these questions are proper for a jury, and not for the magistrate. His duty is simjily to deal with this case as a magistrate would deal with an offence to be tried in this coun- try. These ))rinciples, so • jlf-evident, have formed the invariable i-ulc of action by which the American Courts and judges have guided themselves. In the recent case of jNIuller, heard before Mr. Commissioner Newton, the jirisoner aiij)lied fur permission to adduce evidence, to establish an allOL The following objection was taken by the prosecution : '• The evidence is such as would ]ilainly re([uire the commitment of Muller for trial if the offence had been connnitted here, and it re- sults that a certificate leading to his extradition, that the case may undergo an investigation in England, should be granted." And on this the Commissioner, in the following language, applied the hiAv clearly applicable to that and every other case arising under the Treaty : " Having heard and carefully considered the testi- mony, and weighing it in my mind, that there is not sufficient evi- dence for me, sitting here simply as a magistrate, and the duty for me being simply to determine, not whether the man is guilty or not, but whether there is suflRcient evidence to re(piire that he may be committed, in order to afford an ojJi)ortunity at the place where the crime was committed of ])roving his guilt or innocence. It is not ne cess art/ for me to sai/ whetJwr I would convict the man, and sentence him to be hung, were that even in my province, but the duty that I have to j)erforni is simply this : first, has there been a crime committed ? If committed, is there [)robal)lo cause from the evidence adduced to say that the accused is the i)arty who has committed the crime ? Now it appears to my mind clear, that looking at it in that light — hi the light of probable cause, — it is very plain that there is such cause. I do not desire to sit in judgment on this man, but I wish it were in my power to discover any evidence m the case whereby I could withhold the certificate ; but I am bound to say that the combined circumstances, to my mind ap})ear so clear and distinct, that upon the question of probable cause I can- not have any doubt." 345 idecl mcnt of d it ro- se may ' And cd the mider c tcsti- ut evi- uty for lilty or le may wliere It is ?i, and mt the been a ,om tho ho has ir, that ^s very lf a jury on a final hearing or trial for murder. Under the Treaty I am only to de- termine the question of ])robablc cause. The simple (juestion here to be decided is whether there is sufficient probable cause to justify his return for trial to the country Avithin Avhose jurisdiction the crime is charged to have been committed. In the case of Tenian and others for piracy, alleged to have been committed in seizing the steamer " J.L. Gcrrity," in the month of November, 1863, the judges of the Queen's Bench in England, though differing in opinion on the question \vhethcr piracy, jure gentium, was within the Treaty, did not controvert the same prin- ciple laid down by Lord Chief Justice Cockburn : " No doubt, prima fade, the act of seizing the vessel, saying at the same time that it is seized for the Confederates, may raise a presumption of such an intention ; but then all the circumstances must be looked at to see if the act was really done jn-actically, whicli would be for the jury ; and I cannot say that the magistrate was not justified in com- mitting the prisoner for trial." And Mr. Justice Crompton observed, " Upon the latter point I quite concur with my Lord, because it is not for us to weigh the efiect of the evidence which is for the jury ; and all we can con- sider is Avhether there Avas enough to justify a committal for trial, and I agree Avith my Lord that Ave cannot say there Avas not." It is unnecessary to multiply authorities on a point so clearly defined by the Treaty ; but the folloAving observations of Attorney- General Gushing, in advising the Government of the United States in a case where the prisoner arrested for extradition on a charge of murder, desired to prove insanity before tlie committing magistrate, are so pertinent that they are quoted : " The evidence upon the exhibition of Avhich this {i.e., delivery up to justice) is to be done is such as, according to the laAvs of the place Avherc the fugitive, or person charged shall he found, Avould justify his apprehension and commitment for trial if the crime or offence had been there com- mitted." " Had the Treaty conferred upon the magistrate — if it could have been made competent to such an object — the [)owcr of trying the person charged for an offence committed Avithin a foreign jurisdiction, and of punishing in case of ascertained guilt, the inquiry might have presented itself in a different asjiect. But the stipulations under examination aim at no such end, but are I * t .'is %^\ 1 1 ■• -l r.'f Ifi ■ I ')ii Ir I'F ■l! II, F''^ i i< ' 'f ';!: ■ frt J '1^ if r1 ■ ■ I !v 1 1^ ■ •if 346 confined to the ascertainment of facts whicli can weigh nothing in any consecjuent and purely judicial investigation of the charge." It is contended, therefore, that both reason and authority sup- port the conchision that under the terms of the treaty, and the statutes reLating thereto, on a preUminary judicial en({uiry, we have no right to })ronounce upon tlie state of facts which might or might not have justified the act with which the prisoners stand charged, but that our plain duty is to say that these acts must be tried before a jury. On the subsidiary question, whether as neutrals we can constitute ourselves judges of the character of the act com- plained of, it is submitted that when two belligerent powers have a dispute as to whether a particular act is one of robbery or one of war, it is not the duty of a neutral power (when there is no doubt but that for the state of belligerency Avhich exists, the act would clearly be robbery) to decide so grave and serious a question on a mere e.v parte enquiry. If one belligerent treats prisoners as felons, when they were but performing their duty as soldiers, the other belligerent, to whom the prisoners profess allegiance, can obtain redress by reprisals, retaliation, or otherwise. I have now endeavored to lay before the Court in as succinct a manner as I was able to do, the view which I, humbly representing the first Law officer of the Crown, have felt constrained to take of this transaction, and of the attempt that has been made to jvistify it. I have endeavoured to perform a legal function, in a legal manner, and I have purposely avoided all allusion to many topics, which in so serious a case might possibly have justified allusion on my part. There is one aspect of the case, however, resting on the broadest grounds of international comity, and of the duty arising out of the relationship which should properly subsist between two countries situated as Canada and the United States. The circum- stances of the two countries, — their geographical position, — the difficulty of exercising effectually a continuous vigilance over the acts of those who under pretence of seeking mere security, have only resorted to Canada that they may mature with impunity hostile schemes against an adjoining power Avitli whom we are on terms of peace and amity, have all to be considered. Our conduct ought to be what we would expect and exact from others in the like case, n id such as the law of civilized nations, in the exceptional position we occupy, demands. The doctrine of aftbrding an asylum to poli- tical refugees is admitted to the fullest extent ; the laws' of hospi- tality, the dictates of humanity and the general feelings of mankind support it. But it is an asylum in the proper acceptation of the word, which is sought ; and are the prisoners political refugees or exiles rightly so termed ? Our duty is not confined to affording a sanctuary within our territory under all circumstances for those =S 347 in 5> r 5 sup- the have racd, tried Is we com- ave a )ne of doubt would u on a felons, : other obtain cinct a scnting take of justify a legal topics, [ision on ,r on the arising who call thomsolves political rjfTendcrs ; the further duty of seeing that the privilege of asylum is not abused to tlie injury of a friendly power is C(|ually irai)erative. We are bound to consider Avhether the neutral ground is only resorted to because it offers a safe and convenient resting j'lace in the intervals of warfare, and as the readiest means ot" inflicting \vith imi»unity injury in any other shape on the friendly power ; whether in fact the acts of public hostility or private wrong woidd ever have been undertaken and conunitted but for the })ro.\imity of the supposed asylum — whether they are not in reality attributable to and prom[)ted solely by the facilities which our territories afford both f )r attack and escape. We must encpiire whctlier the nn/Dnn^ in which it is sought is to obtain peace and permanent security, and whether the party fleeing comes in the light of an exile. If we are satisfied of the contrary, then we must say that this neutral ground cannot under the name of an asylum be used as a vantage ground, and that the party fleeing from territory hostile to him, has by his own acts forfeited the security which nations usually accord. lie lias no right to abuse the onlv i)rivileirc which our soil confers — that of beiuii; safe so long as he is jiassive — nor has he the right, because he believes he can escape hither, to plan and perform acts which would never have been dreamt of, but that an asylum was near, and that he believed he could reach that asylum in safety. If Avithin tliat supjiosed asylum he recujierates and prepares for fresh acts of aggression, and is not coiitent with finding security against o})pres- sion and wrong himself, but resorts to it only that he may matm-e, and sally forth to execute, schemes of offence on otliers ; then he has not the (jualities of a refugee, nor is his object an asylum. A refugee is one who, after being overcome as a combatant, flies from his enemy to the nearest place of security — not one who merely, because there is a neutral ground at hand, undertakes to inflict an injury because of the supposed immimity it affords. An asylum im})lies security from mere i)ursuit after an act which the law of nati(ms will recognise — not the means of annoying those pursuers with impunity, or converting the sanctuary into a means of offence. The Treaty was certainly never intended to protect those who committed predatory acts under the name of war across an imaginary line. Sir Cornwall Lewis put the difficulties which must spring from the immunity extended to such acts thus : — " It must not however be supposed that the rigid territorial principle of criminal jurisdiction thougli founded on sound principles, is exempt from its compensating disadvantages, or that the civilized world can be practically cut into sejiarate sovereignties, each acting without reference to the criminal law of its neighbor. Where the territories of neighbor- ing nations are contermuious — where they arc separated by a merely III IB ,ii* •■•r., tt:i i^'"i"i ^j^ m I; f." 1 If- It'' ,i.i ; 348 arbitrary line, without any natural demarcation, such as a chain of high mountains or a broad and unfordablc river, and where therefore a facility of mutual passa;j;e across the frontier limit exists, there the entire independence of the two territories for the purj)oses of criminal jurisdiction may lead to a i)ermanent state of insecurity both for person and property." My learned friend who spoke last on behalf of the prisoners, has referred to a portion of the speech of Daniel Webster, made in the Senate of the United State, in defence of the Treaty of Washington, for the purjjose of showing the exemption of the persons of soldiers from individual responsibility for what they do while acting under lawful orders. Notliing that was said by Mr. Webster on that occasion — nothing that has ever been said by any authority on that subject has the slightest application to the present case. The whole weight of the authorities cited in sup])ort of the principle contented for by ]Mr, Webster, applies to lawful belligerent operations, as recognised and practised by civilized nations ; and it is merely begging the (luestion, to assume that this transaction is of a lawful character, for the purpc ,e of applying the principles laid down in those authorities. Nor is it correct to say that Mr. Webster ever once in the course of that celebrated speech, or on any other occasion extended the principle in (juestion to exemption from trial. On the contrary we find his express words to be at page 125 — " That McLeod might insist on the same facts, and insist on the same defence or exemption at his trial." This is in the ansAver of the American Secretary of State to a letter from INIr. Fox, the British Minister at Washington ; and further on, at page 131, we find Mr. Webster using these very words as if to set the matter at rest : — " Mr. Fox was told that these ])ioceedings must go on, until they were judicially terminated,''^ and in point of fact we know that they did go on ; that jNIcLeod was brought to trial, and acipiitted on the merits. But since the writings or the sayings of Mr. Webster are referred to, why did my learned friend's examination of the speech come to such a sudden termination ? Why did he not proceed to that farther portion of the renowned statesman's explanations on the subject of this treaty, about which there can be no doubt ; that portion of his remarks Avhere Mr. Webster himself tells us not only the object, but the effect of the stipulation of this Treaty, for the mutual surrender of fugitives from justice. Here are the words, at page 140 : " I undertake to say that the article for extradition of offenders contained in the Treaty of 1S42, if there was nothing else in the Treaty of any importance, has of itself been of more value to this country, and is of mo)-e value to the progress of civilization, the cause of humanity and tlie good understanding between nations^ 349 in of cfore there cs of iurity )ners, idc in ity of >f the icy do .y Mr. )y any )rcscnt of the [gcrent and it ition is incijiles lat Mr. , or on ^mjition p be at "ts, and is is in -cm Mr. it page set the >;s must of fact ;o trial, sayinj^s friend's lation ? iiowned t Avhich Ire Mr. of the |cs from [lertalce Intained hi the to this ion, the lations^ than can be readily computed. "What were the state and comlition of this country, Sir, on the borders and frontiers at the time of this Treaty? Why, it was the time when the * Patriot Societies,' or ' Hunters' Lodges' were in full operation, when companies were formed and officers appointed by secret associations to carry on war in Canada ; and, as 1 have said already, the distiu'bances were so fre()ueut and so threatening^, that the United States Government desjiatched (leneral Scott to the frontier to make a draft on New York for mihtia, in order to preserve the peace of the border. And now, Sir, what was it that rei)ressed these disorders, and restored the peace of the border ? Nothing but this agreement between the cwo governments, that of these ' Patriots' and ' Barnburners' went from one side to the other to destroy their neighbor's property, trying all the time to bring on a war, (for that was their object), they should be delivered up to be punished. As soon as that provision was agreed to, the disturbances ceased on the one side, and on the other they were heard of no more. In the formation of this clause of the Treaty, I had the advantage of consultation with a venerable friend near me, one of the members of Michi^inn. He pressed me not to forego the opportunity of introducing some such provision ; he examined it, and I will ask him if he knows any other cause for the instantaneous suppression of these border difficulties than this Treaty provision." Will any one undertake to elevate this St. Albans outrage above the character of the misdeeds here described by Mr. Webster himself as within the express provision of the Treaty ? Will any one contend tliat it partakes of the character of war half as much as many of those expeditions ? Having now laid before the Court the view of this case which my duty compelled me to take, I shall abstain from any further observation not absolutely called for by the circumstances. I feel that any sane man — to say nothing of a grave magistrate, must be expected to caricature his impressions, before he can pronounce the act of the prisoners to be apparently an act of war in itself. I feel that whatever it could, under any circumstances have ])een contended to be, the peculiarity of its origin on, and emanation from, neutral territory, completely deprived it of all possible lawful character ; and I feel that we shall be trans- cending our proper functions, and assuming a responsibility and a jurisdiction we do not possess, if Ave undertake to say that wc will appreciate the guilt or innocence of the parties concerned, and de- cide that with all these questions untried and untriable before us, we will not execute this Treaty, and send the prisoners for trial where alone it can be had. It has been insinuated more than once in the course of this case, that this country is acting under fear and pressure in this matter. Such topics are not usual in English Courts m t|i if I- m i m .(^' ■■U':, M. 350 « ff |fV! •• If- n >■ i ■ |i !• V 1 l'.» J mu m' }^h of Justice, and arc far too rendolcnt of the hustingg, and of politi- cians of the second table, to be Avelcomc in these halls. If such a thing were possible indeed, as that a judge of this country shoidd forget his duty to the Laws, from fear of any foreign power, it would be difficult to imagine a greater baseness, unless it be the baseness that dares not express ; but leaves it to be darkly under- stood, that any man who fearlessly does his duty in such an emer- gency will be liable to the odious and calumnious im})utation of having been swayed by unworthy motives. Allusion has been made by my learned friend, Mr. Laflamme, to what he is pleased to call, two important circumstances that have occurred during your Honor's illness. The one is the execution of ]]eall, and the other a letter of Lord Russell to Mr. Adams. The case of Beall was referred to, to show some fancied inconsistency between the judgment of the Upper Canada Judges and the act of the American Government. No such inconsistency exists. Beall was executed as a spy by martial law, and never Avas a refugee in Canada, or demanded as such by the American Government. Burley was surrendered and projjcrly tried for the offence, or at all events is to be tried for it, for which he was so surrendered. The Judges of Upi)cr Canada never decided that Beall, whose case was never before them, did not conunit rob- bery ; they only held that Burley did. The despatch of Lord Rus- sell seems to be taken as a judicial decision, that the act committed on the Roanake was an act of lawful war. It is no such thing. The American Government could not apply to the Colonial authorities at Bermuda for information ; they were obliged to employ the ordi- nary official channel, and through their minister in London ajjply to the Foreign Secretary for information on a point of fact, not for a judgment on a point of law. They did so, and received the proper answer that the reasons, which had been duly transmitted no doubt by the Colonial Governor, whether good reasons or bad reasons, were what they were. Lord Russell gave no o^iinion on the valid- ity of those reasons in hat particular case. He Avas not asked to do so ; but merely gave the information required ; and even if His Lordship had done so, he certaiidy did not decide that a commission of the nature of the one in the present case ; still less the authority given in neutral territory, to proceed from it to perform an act of robbery was a lawful authority to do the deed the prisoners have done. I have endeavoured, as completely as time Avill permit, and under a feeling of the great disadvantage, in speaking after the exhaustive and able efforts that have preceded me, to place my view of this case succinctly before your Honor. To your judicial authority I now submit it, quite satisfied that far above the tempest of political passion, and still further removed from the baleful reflection of the strife raging between our neighbors, you will do impartial justice between the parties. 851 March 28r(l, mV). Mr. Carter^ Q. C, addressed the Court on ))ehalf' of the ('rosvn. He said : " May it please your Honor — Considering the len^tli of time ah'cady devoted to the ar>^unicnt of tliis ease — the luunher of Coiuisel who have preceded me in the discussion of it — and more particularly the circumstance of y(jur Honor's recent ilhiess, ren- dering more arduous the [jerformance of your duties, it is with ;4reat reluctance I rise to address you. I have therefore tu solicit your Honor's indulgence for a short time, promisini:;, ds I do, to limit myself entirely to the legal aspect of the case. 1 have no desii-e to make what is called a speech, in the sense in which that terra is applied to the efforts of those who aspire to be elo(|neiit — to appeal to the sympathies, or to the })rejudices of men. Such efforts might be excused, when the counsel is engaged in defense of his client before a jury, but can have no weight whatever witli your Honor, in this Court. The case before you is a demand for extra- dition, and I feel it my duty to use my best efforts to convince your Honor, that this demand is just and reasonal)le ; that the lavr you are called upon to administer, imposes upon you tlie obliuation of committing the jirisoners for extradition, and tliat this demand cannot be refused without violating the law of the land, and the treaty obligations of our Sovereign with a foreign govennnent. In all civilized communities, the necessity for the exercise of a cor- rective power, to accomplish 'the suppression of crimes, and the punishment of offenders has been universally admitted ; without which every thing would be anarchy and confusion. 1'hc exercise of this power is one of sovereignty ; the object to be attained, is the jDeace and welfare of the community at large. In securing this, every individual member of society is deeply interested; the safety of his person and property, being the etjuivalent accorded to him, for the sacrifices he makes in contributing his share towards the maintenance of the social compact. In criminal matters, the jurisdic- tion is considered local, the place where the offence was committed being, as a general rule admitting of but few exceptions, the test of jurisdiction. Hence it is that as between nations, it was at one time considered the duty of a nation in wdiose territory the crim- inal may have taken refuge, to surrender him to the authorities of the other, whose laws he may have violated. This point gave rise to conflicting opinions amongst jurists ; the majority being of opinion that whatever might be its expediency, the extradition of criminals could not be claimed as a matter of right, in the absence of treaty stipulations. In this case, that (question does not arise, as the claim now urged is based upon an existing treaty between Great Britain and the United States of America. I now come to the consideration of this claim for extradition, and I am 'i ii i: Hi- 1 I'' 1-R "TtT :R : ;.j. . '^ 'iilM. I.v'' Uii f'tv I;.. 352 reminded by that circumstance of what took place at the close of this arj^ument yesterday. I was asked by several persons, how I could expect to find a sin;!;le ar^^nment to oftbr, which had not been already advanced and fully discussed by the three learned gcntlenKm who preceded mo. I feel the justice of this remark, for certainly every possible effort has been made to exhaust the subject. Witiiout wishin;^, however, to be considered egotistical, I may be permitted to say, that I have still some important points hitherto unnoticed, to urge upon your Honor's consideration. They are contained in this printed document, being the propositions and authorities I have prepared in a concise form. Here Mr. Carter handed to the Judge the propositions and quotations from authorities, and j)rocecded to say that he had stated to his Honor that the Treaty between Great Britain and the United States, might be considered as the very basis of this appli- cation. But his learned friend, Mr. Kerr, had considered it necessary to embody in his fifth proposition, the pretension that the United States no longer existed, because five or six States had been admitted into, and nine or ten States had seceded from the Union since the Treaty with Great Britain ; and that its sovereignty had by the existence of the civil war been dissolved. Mr. Carter denied the proposition, which was altogether devoid of any founda- tion. The accession of territory, or the existence of civil war might aifect the internal organization and government of a State, but in so far as Foreign States were concerned, did not alter its personalty, or its external relations towards them. In support of this doctrine, the learned Counsel quoted from Lawrence's Wheaton, page 39 — " A State, as to the individual members of Avhich it is composed, is a fluctuating body ; but in re- spect to the society, it is one and the same body, of which the exist- ence is perpetually kept up by a constant succession of nev; mem- bers. This existence continues until it is interrupted by some change affecting the being of the State. If this change be an internal revolution, merely altering the municipal constitution and form of government, the State remains the same ; it neither loses any of its rights nor is discharged from any of its obligations." — Also page 36. 1 Phillimore, p. 139 — " But a State may undergo most important and extensive changes without losing its personalty." At \). 140 — " This vital principle of International law is a neces- sary and princii)al consequence flowing from the doctrine of the moral personalty and actual hitercommunion of states." Halleck, p. 72 and 73 — " A State, as to the individual members of which it is composed, is a fluctuating body, being kept up by a constant succession of new members ; so, also, its form of government and municipal constitution may be subject to frequent alterations and 853 3I09O l\OW I not rncd <, for hjcct. may therto ;y are s and s and ic had ,nd the i appli- ;rcd it hat the tes had rom the jreigiity . Carter fouuda- ivil war a State, lid not jm. In Id from idividual it in re- [he exist- V,- mem- ly some be an ;ion and icr loses lions."— lundcrgo lonalty." |a ncces- of the iHalleck, lof which Iconstant lent and Lions and chant];e9 in the constituent parts of the body politic, and in their relations to each other do not attcct tlie character of the l)ody itself, hi its external relations to other communities, — tliat is, in interna- tional law. The State remains the same political body, until its identity is destroyed by interruption in its existence as a separate and distinct society ; and it neither looses any of its rights nor is discliarged from any 01 its obligations, by any mere municipal change or internal revolution." 1 Kent's Com., p. 28 — (Same doctrine.) The second proposition he would lay before his Honor was that the Treaty between Great Britain and the United States for the surrender of oft'onders, was not in any way impaired or aft'ected by the existence of civil war witliin the territory of the latter, or by any change in its internal government. In supj^ort of this he would cite from 1st Kent's Com., p. 28 — " And it is well to be understood, at a period when alterations in tlic constitu- tions of governments and revolutions in states are famihar, that it is a clear position of tlie law of nations, that treaties arc not aifected, nor positive obligations of any kind with other powers, or with creditors, weakened by any such mutation. A state neither loses any of its rights, nor is discharged from any of its duties by a change in the form of its civil government. — The body poHtic is still the same, though it may have a different oryian of communication." The same doctrine was to be found in 1st Phillimorc, p. 143. He came now to the most important con- sideration, embodied in his third preposition, which was to this eifect: — The Queen's Proclamation of May, 1861, declaring the neutrality of the nation during the hostilities commenced between the Government of the United States and certain States styling themselves " the Confederate States of America," is the exercise of a national right, the effect of which at most, is to regard both parties as entitled to belligerent rights or privileges of commerce ; but these riglits must not be confounded with the rights and privi- leges resulting from the doctrine of recoynition. England has not recognized the Confederate States as an independent sovereignty ; and all courts and judges are bound to consider the ancient state of things as remaining unaltered. This principle is recognized by all jurists, and has been invariably adopted by English and Amcri- ican courts. The following authorities were cited in support of this proposi- tion : — Halleck, p. 75, 76 — " The recognition of the independence and sovereignty of a revolted province by other foreign States, when that independence is established in fact, is therefore a ques- tion of policy and prudence only, which each State must determine for itself; but this determination must be made by the sovereign legislative or executive power of the state, and not by any subor- III: m % 1 ■?:;*■ 354 SfM ' ,' . > I- ' Pi '' m ■1 ■J' ii ii dinatc authority or the private judgment of individual suhjects. And until the indepcndenec of tl. row state is recognized hy the government of the country of which it was before a part, or by tlio foreign state where its sovereignty is drawn in (juestion, courts of justice and private individuals are bound to consider the ancient state of things remaining unaltered." L's Wheaton, p. 47 — (Hame doctrhie.) 1 Kent's Com., p. 27 (note) — "It belongs to legislative or executive power (according to the character of the government) to recognize the independence of a peo))le in revolt from their foreign sovereign ; and until such acknowledgment be made, courts of justice arc bound to consider the ancient state of things as remaining unaltered." — City of IJernc v. Bank of Eng- land, 9 Vessey, 347 ; the Manillas, 1 Ed. Adm. 11. 1 ; Yrisarri, V. Clements, H Bingham, 432 ; Thompson v. Bowles, 2 Simons, l!)4 ; Taylor v. Barclay, ib. 213 ; Rose v. llimely, 4 Cranch, 241 ; Hoyt V. Gelston, 13 Johnston, 131), 141 ; United States v. Bal- mier, 3 Wheaton, 010. 2 Bhillimore, p. 37 : — " It is a firmly established doctrine of British and North American, and indeed of all jurisprudence, that it belongs exclusively to governments to recogi^se new states ; and that until such recognition, either by th: government of the country in whose tribunals a suit is brought, cr by the government to which the new state belonged, ' courts of jut-- tice are bound to consider the ancient state of things as remaining unaltered.' " The citation of these authorities must be sufficient to establish conclusively the proposition he had submitted. But he would remind his Honor that Mr. Lafiamme had endeavored to a])i)ly precisely the same princii)le to another proposition. He had also endeavored to draw this deduction, that the prisoners would be treated as robbers ; but his Honor had not to deal with the conse- quences that might ensue in any coimtry, but to deal with the case as it presented itself before him. I'he learned Counsel now came to his fourth proposition, which was that, applying these uncontroverted rules of jurisprudence to the case, the i)retension of the prisoners' counsel, that Bennett H. Young was a duly commissioned officer in the service of the Confederate States, and hence irresponsible for the acts perpetrated at St. Albans, and that this Court was bound to take notice of that commission as proved, was an untenable one, and at variance Avith the jurisprudence of English and American courts. The Court was bound to disregard this commission and the evidence relating thereto, as shown by the authorities he would cite. To adopt the pretension of the counsel for the prison- ers, would be the assumption by a Judge of legislative or executive powers appertaining solely to the Executive Government, and vii-tually to recognize (which England hitherto had not done) the 355 I-. >Ct9. ■ the r the ts of cicnt 47— j;rstO f t\ie •evolt mt be ate of Eug- isarri, ,1'.>4; •241 ; r. Pal- fivmly iecd of nits to by tV-^ .gUt, c V [laining itablish >vouUl ) apply ,d also luld be conse- icase as lamo to ivertcd goners' ccr in ible for bound ,c one, erican lu and ies be rison- icutive and i) the existence of tlio Confoderate States as an indopcMident sovcroiii^nty. This doctrine was hiid down, not onlv by Ainorican authors and jurists, but by several decisions liad in I'liiirland. In L's Whcaton, p. 4-"{ (note) it was stated: — '* Ibit it is to bo rcincnilKTcl that in thcipiestion ofbclh^^ercut ri,:j;iits,as(»faiiiori' formal ackuuwh'd^iiiu'iit of independence, the decision is with the (lovernnient, and not with the Courts ; and it was aceordin^ily held by the Supremo Court of the United States in IH^I , in a east' as to the valiility of u condemnation l>y a Court of Atlmiralty at (Jalveston, that, as the United States had not hitherto ackno\vledi:;i'(l the existence of a Mexican Republic or State at war with S|»ain, so that Court could not consider le- peared that, to prevent a demurrer to a bill, it was falsely alleged in it that a revolted colony of Spain had been recognized by Great Britain as an independent State ; the (Jourt held itself bound to know, judicially, that the allegation is false, and not to give it the intended effect. A reference had been made to the case of the Roanoke, which certainly might ap))ear at first blush to be the strongest case adverted to by the Counsel on the other side. It was a closer analogy to this case than others were, because what had been done there had been done since the commencement of the war. But he thought that there was one observation which was conclusive. That case was not a judicial decision. What was done there was this : a commission had been produced and proved, and the Attorney General said that there the case must end. That was an exercise of Executive authority, and the principles there laid down strengthened his position. His fifth proposition was as follovifs : — " That viewing the circum- stances under which this case presents itself, the obligation of the Im- perial Government to carry out its Treaty obligations with the United States of America — its declared neutrality in the prevailing contest, which is a further pledge of its sincerity to consider these obligations intact — and the non-recognition of the Confederate States as an independent sovereignty, it becomes wholly unnecessary to discuss Mr. Kerr's propositions, that the violation of instructions by a com- missioned officer renders him amenable to his own Government only, and that the other belligerent power, or a neutral nation, can- I i y^ 1 ; rA .1 ' Pi .i r i: 356 not constitute thcmaolves the .ju(l;^cs of Huch violation. It suffices to show the falhiey in this case of sii !i ''nsions, to atiile that these considerations could only arise ia ' ^ iw calU'd a perfect war between two distinct nations, liavin;^ a s. uu- liational character and e(|ual rights oi' sovereij^nty, o transient passa^^o of troops tlironi.'li a junitral territory. The residence of Bennett H. Yomi'' and liis assioeiates in Canada, althou;j;h temporary, stamped tliem with the natinnal character of their now domieil. The j)resuinptioii of hiw with respect to such residence, was that they wore there dnimo mnnfmli,^ and that they had to he dealt Avith in the same manner, and to he judj];cd hy the same rules, as any natural-horn suhjeet, char,::;ed with the same offt-ncc, would he. He jiropoaed to he mueh hriefer in the discussion of this proposition than lie would otherwise have been, from the circumstanco that it had been dwelt on hy his learned friends who preceded him. But there was one point which he thought had not been touched upon, and to which he wished to direct the attention of the Court — that was tlu; law of domieil and the consecjuences resultin<^ from it. Vattel, 1). 1, ch. 19, eec. 2li>, said : — " The inlial)itants. as distiti;:uishe(l from citizens, are foreij^ners, who are permittol to settle and stay in the country. Bound to the society hy their i-i'sidence, they arc subject to the laws of the state while they reside in it ; and tiu^y are obli<^cd to defend it, because it ;^rants them protection, though i». _, they do not particijiate in all the rights of citizens." Also ch. 8, sec. 101. L's Wheaton, p. .")(J7 — '' Ilavin;^ once acipiired a national character, by residence in a forei;:n country, he ou^ht to be bound by all the conseipiencesof it, until he lias thrown it off, cither by an actual return to his native country, or to that where he was naturalized, or 1)y connnenein;;' his removal, hotxi fnh, and without an intention of retiirninif," llalleck, p. 701 — '^ It follows then, that when a person who has attained his majority, removes to another place, and settles himself there, he i.s stamped with the national character of his new domieil ; and this is so, notwithstand- ing he may entertain a floating intention of returning to his original residence or citizenship at som(> future period." 1 Kent's Com., p. S() — '• The prcsum]ition arising from actual residence in any place is, that the party is there ^uDunuli^ and it is u])on him to remove the presumption, if it should be requisite for his safety." He also cited 1 Phillimore p. 202, 278 ; 2 ih., p. 24. The learned Counsel next urged as his seventh proj)osition, that the statement made by Bennett II. Yoiuig, in his voluntary examination, as to liis place of birth and his owing no allegiance to the Federal (Jovern- ment, was no defence to the charge preferred against him. It was the fact of his being doinicile(l in Canada, previous to, and at the time of, the commission of the offence charged against him, which became the test of his national character, the advantages ami disad- vantages of which were inseparnhle from it ; and in supjjort of this he cited 1 Kent's Com, p. 8o — '• The same priiici[)le, that, for all commercial purposes, the domieil of the party, without reference to i !!k . ( !1 ( If'f k ;»: *,v ■• Pi ■ ^ It;,-, l>- fc-) 858 the place of l)irth, becomes the test of national cha,racter, has hcen repeatedly and explicitly admitted in the Courts of the United States. If he resides in a belligerent country, his property is liable to capture as enemy's property and if he resides in a neutral country, lie enjoys all the privilei^es, and is subject to all the incon- veniences of neutral trade, lie takes the advantages and disad- vantages, whatever tliey may be, of the country of his residence. The doctrine is founded on the ])rinciples of national law, and accords with the reason and practice of all civilized nations." In the case of the Danous (cited in 4 Rob, Rep. 255, note) the rule was laid down by the Englisli House of Lords, in 1)S02, in unre- stricted terms ; and a I'ritish sul)joct resident in Portugal, Avas allowed the ])eneHt of the Portuguese character so far as to render his trade with Holland, then at war with England, not impeachable as an illegal trade. The same rule was afterwards ai)plied (in Bell V. Reid, 1 Maule and Selw, 720), to a natural born British subject domiciled in the United States ; and it was iield, that he might lawfully trade to a country at war with England, but at peace with the United States." The effect of these authorities was to show that all incursions ujion a country where civil war prevail were unlawful, and were to ])e considered piratical incur- sions. Bennett H. Young's commission then was of no avail what- ever, and he was amenable for this offence the same as if it was conunitted by one of our subjects. AVhy should his Honor be called upon to apply a different rule in this case to a foreigner from that which wo\dd apply to a British born subject ? Both had to be dealt with in the same way. That doctrine was founded not only on law but also on e(piity. It was no answer in the prisoner's moutb. to sa}^ Oh, I left Canada and went to the United States to commit this act of depredation ; but I am a Confederate soldier, and acted according to instructions ; and what would be con- sidered a crime in a British subject, is justifiable in my case. Such a position was altogether untenable. It was contended that Biuuiett H. Young was a duly commissioned officer in the service of the Confederate States, and that the jiolicy of Great Britain had also been to afford protection to }Klitical refugees. This pretension, however, had no application to the case, as the evidence established that he availed himself of the asylum afforded to him by his residence in a neutral territory, to commit depreda- tions in a neighboring State on terms of amity with England. These acts are to be judged by the municipal criminal code, Ixnng also prohibited by tlio law of nations. In support of his argument the learned counsel cited : 1 Phillimore, p. lUO — " Upon the same principle, though a nation has a right to afford refuge to the expelled governors, or even the leaders of rebellion tlying from ■> ■ )eeTi litcd ty is atral leon- isad- )nce. and In rule unre- , Avas LMidcr ;]ia1)lc •a (in iritish >at lie )ut at oritics il war incur- l what- it was lor be r from to be )t only soncr's atos to loklicr, c con- ease. Itcndcd liu the (Ircat t'uii:ecs. as the iffordcd ])rcda- 5h\nd. I, being uracnt n the to the r from 359 another country, she is bound to take all possible care that no hostile expedition is concerted in her tei-ritorics, and to give all reasonable guarantees on this subject in answer to the remon- strances of tlie nation from whicli the exiled has escaped." At p. 191 — " For it never can be maintained that however much a state may suffer from piratical incursions, which the feebleness of the executive Govenunent of the country whence they came renders it incapable of preventing or punishing, that, until such govenunent shall voluntarily acknowledge the fact, the injured state has no right to give itself that security, which its neiglibor's government admits that it ought to enjoy, but which that government is unable to guarantee." At p. •S04 was to be found the following portion of a speech delivered by Lord Lyndhurst : — •' Foreigners residing in this country, as long as they reside here under the protection of this country, are considered in the light of l>ridsh subjects, or rather subjects of Her Majesty, and are punishable by the criminal law precisely in the same manner, to the same extent, and under the same conditions, as natural l)orn subjects of Ilcr Majesty." He came now to his ninth jiroposition, namely, that assuming that Bennett H. Young was a duly commissioned otHcer in t!ie service of the Confederate States — thai he came to Canada for the purpose of carrying on hostilities according to such instructions as he might receive, and that his acts at St. Albans were performed in obedience to orders conveyed by the Hon. C. C. Clay's letter of (3t]i Octol)er, 18i!4 ; still the pretens'on of his Counsel that those acts were to be regarded as acts of warfare, legitimately performed in obedience to orders he was bound to ol)ey, and such as to entitle him to immunity as a belligerent soldier, was altogether at variance with the rules of international law. These rules furnished a comjilete answer to this pretension. First : that a belligerent state possessing rights of sovereignty (which the Confederate States did not) could not by commission or otherwise authorize act?, the performance of which involve a violation of neutrality and the commission of a crime. Secondly : that Young was not bound to obey such order ; the order itself made in Canada being a violation of law*, interna- tional and municipal, and affording no justification. Thirdly: belligerents who did not respect the neutrality of a State, commit a violation of international law. He tpioted Hallcck, p. 490 — " No authority can reipiire of a subordinate a treacherous or crim- inal act in any case, nor can the subordinate be justified in its performance by any orders of his superior." 1 Kent's Com., p. 129 — " There is no exception to the rule that every voluntary entrance into neutral territory, with hostile purj)oses, is absolutely unlawful.' At page 127 — " So in the case of ' The Anna,' the sanctity of neutral territory was fully asserted and vindicated 'W i ]} k 1 ''P! ' I 4 I V '^ X: S -ml U' H. 'V Si'i M.".:?. «fi 4 ' S ^ ■■ 1 ■JTj \/. X'-i i i 1 • 1 ?r Hi ^1^ fe -I 360 and restoration made of property captured hy a Britisli cruiser near the mouth of tlie ^lississippi, and within the jurisdiction of the United States. It is a violation of neutral territory for a belli<;erent ship to take her station Avitliin it, in order to carry on hostile expeditions from thence, or to send her hoats to capture vessels beyond it. No use of neutral territory, for the purposes of war, can be ])ermitted. This is the doctrine of the |];overnment of the United States." It ^vas declared judicially in En<^land, in the case of " The Twee Gebroeders," (o Hob. Rep. 373) ; also 8 Phillimore, pp. 334 and 337 ; Ilalleck, pp. ol7 and 523 ; Vattel, b. 3, c. 7, sec. l-)3. lie woidd also (piote from pp. 16 and 17 of Leiber, on ^^uerilla warfare. Mr. Leiber, as a matter of course, did not pretend that uniform was essentially necessary to constitute a man a soldier. On the contrary, he admitted that a uniform could make very little ditference when enga;^ed in lawful acts of war, such as a sieizc, &c. That was one case ; but there was another which he mentioned which should not be lost si^^ht of. He said: — "It makes a ^reat dift'erence, however, whethev the absence of the uniform was used for the purpose of concealment or dis;i;uise in order to ;^et by stealth Avitliin the lines o{' the invader for the destruction of life or ])roperty, or for pillage, and whether the parties have no or'zanization at all, and are so small that they cannot act otherwise than by stealth. Nor can it be maintained in good faith, or with any respect for sound sense and judgment, that the individual — an armed prowler — (now fre(|uently called a bushwhacker) shall be entitled to the protection of the law of war, simply because he says that he has taken up his gun in defence of his country, or because his government or his chief has issued a proclamation by which he calls upon the people to invest a town and commit misdeeds which other civilij^cd nations will consider murders. " Now what stronger language couldbe cited which had a more direct apj)lication to this case ? What did these unfor- tunate young men do ? Did taey not disguise themselves and enter the town by stealth, that being the only way they coidd act. There Avas no authority— even a recognised sovereign could not give to Mr. Young orders to do that which was a violation of international law or that which was a criminal act. Therefore the prisoners could not be ])rotected because they obeyed. lie also cited another case in which it was laid down that " it is not presumed their sovereign has ordered them to commit a crime ; and even sui)posing that they had received such an order, they ought not to have obeyed it, — their sovereign not having a right to command what was contrary to the laws of nature." What could be clearer than this ? And yet it was pretended that Jeff. Davis had a right to order these acts, no matter what they were, ;.JJ ,'orcign they \Ylat lat Jeff. ^Ye^e, so long as the end In view could be accomi>lished. That armimcnt might do in the prisoners' own country, hut not hei'ore this Court. After dwelling uiion this ])oint, Mr. Carter proceeded to the c -n- sidcration of his tenth pro])osition, that was, the charge against the prisoners. The complaint charged the ])risoner3 with the crime of robbery, in having at 8t. Albans, on the iDth October, iSd-l, with force and violence, taken from the ])erson of one l>reck a sum of $300. Breck was a peaceful citizen, inuirmed, and not engaged in hostilities ; but i)ursuing his ordinary business avocations, lie went to the Bank .vith this money to ]»ay a note, and there was robbed. The prisoners' counsel had found it necessary to invoke the ancient and extreme rule, that " right of spoil or ])lunder extends in general to all things belonging to the enemy." But in this case, the propositions and authorities already given, established that the acts of the prisoners at St. Allians could not be regarded as acts of warfare. It was unnecessary to discuss the tpustion, to what extent depredation and plunder might be considered justifi- able, as between the belligerents. It was, lunvever, certain that the principle invoked by the prisoners' counsel was at vari- ance with the rules of warfare, now recognised and acted upon by nations, as shown by the following authorities ; to Yattol, b. 8, ch. 9, sec. 173. 3 riiillimore, pp. 101, 3. 1 Kent's Com., pp. 09, 100, 1, 2, 3, and 4. llalleck, pp. 3^2, 8, 427, 4r)(5, 4C2. L's. Wheaton, pj). 580, 8 ; 591], GOO, 1 ; 020. Lieber's Instruc- tions, Rides, 10, 22, 25, 83, and 84. lb., on (Juerilla Parties, ])p. i^ and 17. Lieber's Letter, 5th February, 1805, Trial of Beall, pp. 84 and 85. In conclusion, Mr. Carter said : — I would respect- fully submit that your Honor's attention must 1)C directed to the consideration of the following points which arc respectfully submitted as conclusive. 1st — That the charge has been fully ])roved against the prisoners. 2nd — That although their leader. Young, claims to , be an oflScer in the Confederate i^tates, his acts were not authorized by any authority this Court can recognize. 3rd — That the com- mission he produces must be disregarded, the Court being bound to know judicially that the Confederate States have not l)een recogni- Z3d by Great Britain as an Independent Sovereignty. 4th — Tiiat the incui*8ion made from our territory into the State of Vermont, is to be regarded not only as a crime punisliable by our mmiieipal law, but is declared an act unlawful and ])iratical by international law, and hence not protected by it, as an act of lawfid warfare. 5th — That the circumstances attending the commission of the act charged, irrespective of the above considerations, tested by the prin- ciples of international law, assume no other character than an act of robbery. It has been stated that if the prisoners were not extradited, the consequences might be to involve us in a war with t • •4:; ■5- f: wm i.i ' ' ?■• t ' 362 the United States. Sncli an event is possible, but I have reason to hope it^vill not occur. 'I'he United States have a riglit to expect a fulfihnent of our treaty obIi;fations — the strict observance of our declared neutralit ', which prohil)its our countenancing the acts of the prisoners, which are not only a violation of our municipal rules, but also of international law. I deem it my duty, however, as one of the representatives (if the Crown, to disclaim all intention to urge that consideration as a ground ihr extradition. It is very far from being the desire of the (rovernment, to avert the consequences of a war, by unjustly offering as a sacrifice the liberty of any man. (lod forbid that this should ever be the case. Speaking as a true English- man ought to speak, I say that England, and her loyal subjects in Canada, would far sooner meet war, witii all its direful conseipien- ces, than that its Judges or its Courts should become the instru- ments of injustice and oppression. But I do not conceal the fact that your Honor's decision is looked forward to with some anxiety — one laudable and ])raiseworthy, and which every nation and government should feel — the anxiety to preserve its honor and good faith in the execution of its conventional obligations, with other nations. The honor and good faith of our (Jovernmerit is therefore in a measure involved in this in(piiry, and they will not, I feel confident, suffer at your Honor's hands. ITon Mr. Abbott, Q. C, in reply. — When I review the immense accu- mulation of matter that has l)een laid before the Court dui-ing these three days, which it devolves upon me now to analyse and discuss ; and the lengthy arguments entered into by the learned Counsel on the other side, to which I am now called upon to reply ; tlu task appears of a[ipalling magnitude. Not so much on account of the applicability to this case, of either the citations or the argu- ments, but chiefly because of the enormous ninnber of authors and books which my learned friends have cast before your Honor, as I conceive almost indiscriminuteiy, and with but little regard to their connection with the points of law arising in this case. And another, though a minor difficulty which meets me at the outset, is, that my learned friends do not (juite agree u[)on the grounds upon which they demand the extradition of these prisoners. Some of them think, for instance, that the reasoning of the Upper Canada Judges in the IJurley case was right, and some appear to think it was wrong ; though as a matter of course they agree that the conclusion arrived at was the riglit one. jMj'. Bi'tliune. — We never said their reasoning was wrong. Mr. Abbott. — Well, I do not know whom my learned friend means by " we ;" but as I find that the advocates for the extradition i . ■4. !■; i 363 of those prisoners, who appear here on helialf of the Crown ; are not less nr;:ent and vioU'nt than those who appear on l)elialf of tlic United States ; and thon^rh difterin^r, as I have already said, as to the meanin;^ of many of the authorities, and as to not a few points in the case — that they all desire the same ohject, namely, the rendition of the jirisoners ; — I think I n»ay he justified in classin;^ luy four learned friends in the same category. And when I find them dis- agreeinj^ as to the law, and as to the groiuids on whieh these gentlemen aiv to he sent over our lines, I think I may remark upon the eireumstanee as heing one whieh is to some extent perjjlexing: and whieii adds to the dilheulty of replying to their arguments. It is not my intention however to examine the authorities my learned friends iiave eited, hook l»y hook, page hy page, to see how far the jiropositions of law deduced from those citations apply to tliis case, or how far the propositions they |»rofess to find thevc are sustained. To do so would he trespassing too much on your Honor's time ; and would he implying a douht of your fully ajtprc- ciatin.LS as you now ini(|uestional»ly d(», all the points in this case. But though my views of the case may Ite unnecessary ;iud super- fluous ; to express them is a duty I owe to myself and to my elients. And tliough I nmst ni'cessarily occupy considerahlc time in their develnpnuMit, I shall endeavor to restrict myself as much as the 6ul)jfct will permit me to do. In pursuance of this ohject, therefore, I propose to seek among the authorities and arguments of my learned friends for those points whieh appear really to hear on the (piestions suhmitted to your Honor; and \ith regard to the remainder, I shall endeavor to show that they have no just apjtiication. l)Ut first. T tliink it is my duty to place the prisoners, and the pretension^" of their advocates, in their projter ])osition. My learned friends op[)0'^ite have expendeil a great deal of eloiiuence — I should rather say declamation — in enlarging upon the disadvantageous position in wl.iei. this country would he placed, and upon the disas- ti'ous conseiiuences which would result to it, if you decided not to extradite the prisoners. We have heen informed that it is otn* duty to can y out the Ashhurton Treaty ; and extracts from several au- thors ' ave heen read to prove that we lie luuler such an ohligation. It lias heen assumed that the discharge of these men would he tan- tamount to a declaration tiiat persons might, with impunity, make incursions into the United States from our territory, and might re- turn to it to re-engage in hostile ojierations from time to time. That by holding that the law did not justify yoiu" committing them for extradition, yon would necessarily also hold that such persons had a perfect right to make our neutral territory u hasc for such enter- I IP ,1 1 •.\^:\ S '■ 1^ j ^ •!■; '^^-■'. ?!k ' 1 f #: II; 864 prises against the United States ; and that the maintenance of such doctrines would end in involvin<^ us in war, or in serious ((uarrels with our nei;!;hhors. Every <>nc of my learned friends has nr^ed or as- sumed, that you nnist eitlier connnit these men for extradition luidcr the Ashhurton Treaty, or approve of the attack on St. Albans ; that you must hold that the- attack was perfectly justifiable and legal, and not even an infringement ofonr own hnvs, even though it had originated in Canada ; and that you must hiterjxise your au- thority to protect the )»risoners in their unlawful conduct; or that you must extradite them. Bui all these merely constituted some of the numerous fallacies which the Counsel opposite have placed before us, and they are not in the least degree more transparent than many of their fellows. We insist in the interest of our clients that you are bound to give effect to the Ashbnrt'm Treaty— but only in accordance with its true intent and meaning. We do not claim or argue that this attack on St. All)ans was justiRvMl liy the laws of C'l.nada. We do wOt ask your Honor to hold, or assort that you ought to hold, that the prisoners had a right to make Cjp uda a bnsc of operations against the United States, or that you should protect them in organizing exjicdi- tions from Canada into the United States ; nor do we argue that they should be discharged on the ground that hostile incursions from Canada are justifiable by our laws. I claim that by discharging the prisoners, you would hold notliiiig of the kind. A decision that the prisoners are not hable to extradition, will notin/olve any judgment upon the char:'.;ter, as regards the Canadian Government, of the act they counnitted : nor will it decide that the ])risoners may re- turn to the fr()ntier-li!ie,and engage in a similar enterprise, return- ing once more to Canada. Your decision will not touch any of these mp iters. The argument of the Counsel who opened the case for the defense was, not that you should approve of what was done at St. Albans, but that it was not within your province on this occasion to pronounce any opinion u^wn it ; that the prisoners' Government alone had a right to deal with that matter. We say now, as before, that v,e neither ask your Honor to a])prove or disap- prove of the prisoners' conduct ; we are perfectly ready and willing to submit that to the ap[)ropriate tribunal when the pro[)er time arrives. The decision we seek will not reipiire you to declare from the bench of justi^^e, that incursions from this country into the United States lu juricifiable or otherwise, or otherwise to give the sanction of your authority to a,!.- act of the kind, or your protection, to the perpctiat .ra of it. What the Counsel for the prisouers contend for is not apiH'obation of the prisoners' conduct, but a declaration that their case does not fall within the Ashi)urtou Treaty. We do not ask that the Treaty be disregarded ; but that it be only made to apply to circumstances consistent with its hitention. This is all I ¥' ll^vl if such Is with or as- under Ibans ; le and ^w^h it D\u' au- or that some of ])laccd nt than its that only in »r ar^nio ila. Wo that the linst the cxjiodi- hat they )iis from •hariring tliat the dement of the may I'C- retiirn- any of \o case as (h)nc on this isonevs' We say disap- Uiu.^to ivrives. )m the United auction to the I for eu( Ion that ot lo n lia( lis le to all I 365 propose to say on what constitutes a large pro]iortlon of the addresses of some of my learned friends opposite. There is another ])art of those addresses which I propose to dis- miss still more suunnarily, and that is the extensive vocal)ulary of vituperation with which we have been favored. In that kind of contest I am not disposed to engage. If the arguments of the learned gentlejnan to whom tliese remarks more particularly apply were as strong as his epithets, I should be disposed to give np the case in despair. But as I hope to be able to shew that his law is as bad as his language, I shall leave this portion of his address without further comment. It seems to me that in order to arrive at a proper api)lication of the princi[)les of law which really do govern this case, it is necessary to discover what the facts are : and to that I shall first apply myself. In presenting these tacts to your Honor, I shall endeavor to state them exactly and fully, not selecting a portion of a document or a deposition, and holding it up as conveying all the truth ; but shewing the details of every circmnstance put in evidence ; the legal effect of it, and its l)earing upon the merits of the case. With this view I shall go over the whole of the testimony, verbal and written, and try to place clearly and con- secutively before you what it establishes. The learned gentlemen opposite deny that you have any right to encpiire fully into the facts — they say that you have no right to examine them, an fond — that it is sutHcient if a jn-iina facie case be established ; by which they ajjpear to mean that you shall look only at the facts they choose to place before you : and that you shall not emiuirc how i'ar the acts with which the prisoners are charged, arc (pialified by matters which remove them from the oj)eration of the Ashburtou Treaty. Mr. Johnson and Mr. Devlin have both urged this view ; and have been so far consistent hi it, that from the first they have insisted that your Honor was bound to commit for extradition, merely upon a dej)osition being laid before you, shewing that the })risoners had entered the bank of St. Albans, and taken bv violence ^'600 from Mr. Breck. In answer to this pretension, 1 shall refer to an authority or two which I think appli- cable to this jioint, to show what I conceive to be really your Honor's duty in this behalf. These authorities are the same, which, strange to say, my learned friends have cited as su[)porting their view, but which ap])ear to me to have a contrary ten- dency. The Chesajicake and Geiity case sarc those of which I speak, and which I think establish, not that you are to try these men ; but that you should find out, if })Ossible, from the evi- dence before you, whether a robbery within the meaning of the Ashburton Treaty was really committed at St. Albans by these I iN :«i ••T' t-- 366 I '5 11 i'H men, as charged in the information. And the first element in tliia cmiuiry is, whether any njhhcry at all wiis conmiittod. If it bo not shown positively that there was a rolfhery conunittcil — if wo have not a corpus delicti^ the ease is at an end. Yonr Honor would not commit a man for robbery, unless you were satisfied a robbery had been perpetrated. You would reipiire proof that some ofllenec had been committed, before sendin*; thui accused to a trial. I deny that a robl)ery was connnitted in 8t. Albans, of tho description mentioned in this information; or that any offence whatever was committed there, for which the ))risoners are amenablo to any municipal tribunal whatever. There is no disputinji the fact that the prisoners were at iSt. Albiins on the ll'th October last, that they pillaged the town, sot it on fire in three places, and that in the skirmish a man was killed. But I say, that pillage was not robbery, that burning was not arson, that killing was not mur- der. Surely these ([uestions must be decided before ordering the extradition of the ju-isoners ; an order whereby, if our pretensions are correct, an immeasurable wrong would be done to them which no trial in the Federal States could repair, as their only defence would be rejected as insufl^cient in law by any court in those States. Thig is the view which I submit is sustained by the Chesapeake ease. At page 4t) of the report. Judge Ritchie says: " The d/dt/oj' ilftcr- " in'miiKj on the sujfiinenci/ of the evidence is cast on (he iM(i;/is- " tnite or other officer. He is the person to he satisfied that the " evidence justifies the apprehension and conintiltalfur trial of the " persons accused. The amount and value of that evidence is for " his deter nu nation. * * * j^ i^^ ^^ judicial discre- " tion with which he is vested.''* It is to be observed that Judge Ritchie was disposing of an ai)plication for the discharge of the prisoner Collins, under a writ of habeas corpus, one ground of which application was, that the act of seizing the Chesapeako was a bolligerent act, in the interest of the Confederate Stutt s. And he is arguing that he cannot be regarded as sitting as a " Court of Review or Error," on the decision of the magistrate. Yet, he says, " if it was manifestly apparent that the evidence showed that )io " offence had been eoniniitted, or that the jjarty was un(picstionably " innocent, and that, therefore, there was really no matter of fact " or law to bo tried ; no matter in which a magistrate could exer- " cise a discretion or judgment, then the case would be very diffe- " rent." And what would Judge Ritchie have regarded as being sufficient, to make it " apparent that no offence had been com- mitted" ; that the party was umpiestionably innocent?" Such as would leave the magistrate no judicial discretion to exercise ; and would compel him, on habeas corpus, to discharge the priosners ? Why simply, that the prisoner CoUins should have proved, either f in this f it ho -if wo Honor ifted a >f that j(l to a of tl\o oft't'nco lenahlo ho fiict .'!• last, }S, and i;^o was )t mur- ini^ tho ions are liifii no e 'wonkl s. Tliis cc case. >/ dctcr- Mmjis- ' hat the I of the (■ is for ilimre- J n(l,!^o of tho )un(l of ko was And ourt of e says, hat m [lonahly of fact I exer- (liffe- ))cing li com- luch as , and hncrs ? I cither 307 that lie was a snhjcct of the holli^orcnt State, or that l)eing a British suhjeet he had a commission from the helii^erent State. If either of these facts had heen clearly estalilished, it is plain from his langnage that he wonld have held that there '• was nothin;:; for " the magistrate to deliherate n|ion : nothing for a Snperior C'onrt " or a jury to try." lie shews that the evidence does not prove that Collins and his party were " acting nnder a regtdar connnission," or " were helligerents themselves," "/• '' that the expedition proceeded from the Confederate States." If any of these three conditions had heen estalilished, it is clear that he woidd have held that the magistrate had no i-i^dit to connnit : had no matter hefore him snsceptihle of the application to it of a Judit-ial discretion. In the Chesapeake case, none of these conditions were to he found; the prisoner was a natural horn British sn))j(ct ; and the only proof of the rank claimed, was a jiaper signed Ky another natural horn J3ritish suhject, who asscrti-d himself to he a com- mander in the Confederate Navy ; hut who failed to prove that he held that rank, and still more that he ha\Liistrate having original jurisdiction ought to have acted, if all three of these elements had heen comhined ? If all three conditions of things were proved to exist, any one of which he held would have virtually taken the case out of the jurisdiction of the magistrate ? If it had heen proved that Collins was a conunissioned othcer of the Confederate States, and that he and his men were suhjects of the Confederate States, nay more, enlisted soldiers of the Confederate States ; and that the design of currying out similar enterj irises originated in Richmond ; and that " the plot was concocted," not in St. Johns, New ]]runswick,hut in Chicago ; and that the act was committed — not on the high seas, which helong to no one— -hut in the territory of the other helligerent itself, twenty miles from its herders. How long would Judge llitchie have hesitated to declare that Mr. Gilhert had done wrong hy committing Collins for extra- dition — that he had pretended to '' exercise a judicial discretion," in holding the facts sufficient to warrant that connnitment ; when in fact " it was apparent that no offence had been committed," and that there " was no matter in which the nujgistrate coidd exercise a discretion ?" Or rather, I may ask, what magistrate within this realm could be found, who would give Judge llitchie, or any other Judge, occasion to discuss such a (|ucstion V ife! III.* > ■ I' ■4 %. f '.' ' •"■ '<. i: ■ "l (. . H« Mti '. I- 1 If? ('I 36S The Chesapeake caso,tlieref(»re, clearly cannot be made avaihible for the prosecution to shew that your Honor, having primary juris- diction in this matter, ought not fully to investigate tlio facts of the case, and decide, in the exercise of your judicial discretion, whether or no any such offence as that charged has really been committed. In the (jrerity case the doctrine held by the Judges seems to have been the same. Notwithstanding whnt Mr. Johnson has said, in regard to it, the language of the Chief J^ustice of England, in dis- cussing the (juestion whether or no there was sufficient evidence to shew thiit the seiz one can road the report of the (h'riti/ caw , without being satistied that if there had boon any more evidence, than the declaration of the men themselves that they were acting for the C(H\federate (lovenimont, the Court would have dischargeil them on that ground alotie. It is a proof of the care and impar- tiality with which such (piestions are viewed in England, that all the Judges take into consideration the presumption of belligerency afforded by the declaration of the prisoners, though they hold it insuf ficient to warrant their interference with tlit» jurisdictioii of the magistrate who tried the case. If tlu; prisoners liad pn^vtMl that they acted \nider an olliccr of the Confederate navy, u. 'er wriiteii instructions from (,'ommodoro liarron at Hrest, would thei*? have been any hesitation on the ])art of the English Judges in dealing with the matter? Their ow h'rta in tiiat case; the authorities that have lieen cited fromwritei i international law — the t//f^i of judge Kitchie ; of the Judge at Jiermuda in the Uoanoke case, which the (Govern- ment of England, as evidenced by Lord John llussell's despatch, have approved of, — all show that the mere possession of naval or mili- tary rank, if not the mere national chai-acter of the aggressor as a belligerent, is sulHcient in itself to justify hostilities against an enemy in an enemy's territory. And I commend this case to the at- tention of my learned friends opposite, not only with regard to this point, but to another raised this morning. 1 refer to the su{)poscd effect of the neutral character of the aggressor : or of the enterprise having proceede^l from nuetral territory. Ihit it will be my duty to discuss this point more at length in its proper place. The rule I am now contending for has not been unknown, or unobserved in similar recent cases on this continent. TIhm'c has Ix^en a case lately at Slierbrooke before Judge Short, and another before an Amercan Judge at Detroit in which it has been recognised and acted on. In the former ease Judge Short declared that he would have felt justified in ordering the taking of evidence on behalf of the defence, to satisfy himself that the offence was within the Treaty, if the prisoner had not applied for the [)rivilege of (U>ing so. And in the latter, the prisoner was discharged after the rcceptio'i of evidence on his behalf — the evidence for the prosecution taken by itself being complete. In the Ihirley case, also, delay was granted to procure evidence to be placed before the Judge, as to the nature of the offence committed : and that evidence was weighed, and dis- cussed by tiie Judges — though with a conclusion to which I cannot assent — and which I venture to assert will not be assented to, and and I have the best reasons for knowing is not assented to, even l>y Federal lawyers. Y l^ V IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !!■- IM la m 12.2 I.I li'i 111112.0 14. 1.8 1.25 1.4 J4 .4 6" — ► p /i Va "^y ^ 7 :^ > "-^ /(S^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 370 :'l\ iff' ■■■"■- i I have now perhaps devoted more time than was absolutely neces- sary to the discussion of this branch of the case, and I turn, as I stated I would do, to the facts — to the actual state of the evidence as regards the position of these men, and their authority for what they did. Upon these points wo have had a great deal of discus- sion ; and it is proper that they should be fully appreciated — for till we arrive at some decision upon those, voluminous citations are of little use. In reaUty was the act now complained of an ordinary felonious robbery, or a hostile or a political act, arising out of the unfortunate state of things now existing between our neighbors ? what is the status of the prisoners, and who are they ? — are they British subjects, as my learned friends opposite pretend ? — have they acquired a domicile in this country that deprives them of their national character ? — that divests them of their allegiance to their parent state ? — Oi arc they citizens of the Confederate States ? Is Mr. Young a subject and a commissioned officer of that power ? are his comrades the soldiers as well as rhc subjects of that power ? Now I contend that we have pi-oved beyond dispute that it is the latter state of things which the evidence demonstrates to have existed. The first document I shall refer to as establishing this point is his commission, which reads thus (p. 80) : — Confederate States of America, War Department, Richmond, June 16th, 1864. Sir, — You are hereby informed that the President has appointed you First Lieutenant, under the Act 121, approved February 17th, 1864, in the Provisional Army in the service of the Confederate States, to rank as such from the sixteenth day of June, 1864. Should the Senate at their next session advise and consent thereto, you will be commissioned accordingly. Immediately on receipt hereof, please to communicate to this Department, through the Adjutant and Inspector General's Office, your acceptance or non-acceptance of said appointment, and, with your letter of acceptance, return to the Adjutant and Inspector General the oath herewith enclosed, properly filled up, subscribed, and attested, reporting at the same time your age, residence, when appointed, and the State in which you were born. Should you accept, you will report for duty to (Signed) Jas. A. Seddon, Secretary of War. Lio u. Bennett H. Young, &c., &c., P.A.C.S. This is a document which undoubtedly, by its terms, confers on Bennett H. Young the rank of First Lieutenant in the provisional ate States of America. Well, if this is not a 371 ices- as I ence what scus- — for is arc inary of the bors? : they -have f their their s? Is lower 1 j)0'wer ? t is the ,0 have point is -)ointed ylTth, 'ederatc 1864. hereto, to this s Of&ce, .nd, with nspector )scribed, ce, when War. Honfors on Irovisional is is not a commission, what is ? True, it is no ^ on parchment ; it is not signed by the President, nor does it purport to emanate from the Senate of the Confederate States ; it is not approved and confirmed by the Senate, nor does it bear the great seal. I give my learned friends the benefit of all these negatives ; but yet it undoubtedly is genuine, and it has a certain effect. What is the effect of it? — Is it, or is it not a document which gives to Bennett H. Young the position of lieutenant of the C. S. army ; I ask my learned friends opposite if Mr. Young is not entitled, under this document to the rank of Lieutenant in the provisional army of the United States ? Mr. Bethune. — I say no. Mr. Abbott. — Who is to judge whether he is or not? 3Ir. Bethune. — A jury. 3Ir. Abbott. — A jury indeed ! That sounds very plausible, and very well ; and it would answer my learned friend's purpose admirably, to refer all these questions to a jury in the Federal Scatcs. But what would a jury in the Federal States be instructed to say V What would a Judge feel bound to tell them ? I will inform the learned gentleman. The Judge would thus address the jury : " Gentlemen, tho only evidence of the independence of a separate " Government, or oven of its belligerent character, which you can " recognize, is the declaration of the Executive Government of " these United States. Until that Executive decides that the " so-called Confederate States are entitled to recognition as an independent State, you cannot notice their pretensions to such a position ; for it is not for courts of justice, or Judges, or juries, to " say whether another nation, or section of a nation, is entitled to the rights of a separate state. Therefore, as the Executive has " not declared that the so-called Confederate States are entitled to " the position and rights of a separate sovereignty, you must entirely " disregard this commission. You are bound to take the law from ''me, and I tell you that the law is, that the most valid and formal " commission which Mr. Davis can issue, is as a piece of blank " paper in the eye of the law." I assert this, because I know that a jury was in effect thus charged by Judge Nelson of New York, in the Savannah case, under similar circumstances ; and I beheve that the charge of Judge Nelson was correct from his point of view. And it is precisely because I beUeve his view to be that which every Judge in the Federal States must hold, that I raise my voice with such persistent earnestness against the monstrous pretension, that your Honor is to refuse to examine this document, or to exercise your judicial discretion upon it ; and that you are bound to remit the consideration of the effect of it, to a tribunal which cannot lawfully even look at it. I say that to adopt such a view, would be to disregard every principle of justice, every im- :i a a a t ■ I I; •• ■ m i: ■X: ■ ir 11, ;J''' 372 u ■ H i 1' f 1 'i 1 J '■ ( I ■' "' ' i P M « I- ■ 1 3 1 'i: 1 1^ ■ r.'. r * . ;■_ pulse of humanity ; and to degrade the position of a British magis- trate, exercising freely, independently, and intelligently his learn- ing and his judgment ; to that of a hireling scribe, recording, with slavish pen, the ukases of a foreign cabinet. I say, your Honor, that it is you who now can, and must, decide this question. It is you who must say whether or no, according to your conscientious belief as a Judge, upon the evidence before you and the law, this instru- ment, either by itself, or followed by the other documents of record, entitled Mr. Young to the rank of a Lieutenant in the Confederate army. And you 7nust decide, because that rank is an essential part of the state of things which, the prisoners claim, takes from their hands all stain of guilt ; and because, if that state of things really did exist, you have no right to cause these men to be handed over to their natural enemies for execution. I say for execution ; for their commitment might well be accompanied by the same solemn recommendation to the mercy of the last and highest Tri- bunal, as follows the last and most awful sentence of offended human justice. The contents of this instrument render it easy to discover its eflFect. " The President has appointed you First Lieutenant, &c., to rank as such from the 16th June, 1864." So far no com- ment is needed. But the learned Counsel say that it is subject to confirmation by the Senate. True, so are all acting appoint- ments subject to confirmation by the sovereign power. In our own army, and in every army, and in every navy, acting ap- pointments are made subject to confirmation by the sovereign ; but they are not subject to the imputation of nullity, either by a neutral or by a belligerent, pending that confirmation. No one would venture to assert that a gentleman holding an acting appointment in the British army or navy could be treated as a robber on land, or as a pirate at sea, because his acting appoint- ment awaited confirmation by Her Majesty. Besides, in the present case, the intention is plain. Lieut. Young is not told that he will be recommended for appointment by the Senate ; but that the President has appointed him. He is not told that he will rank from the confirmation by the Senate, but that he will rank as Lieut, from the 16th June, 1864. But the learned Counsel say that there are conditions precedent to this appointment, and that there is no proof that those conditions were fulfilled. My learned friends are mistaken. There are no conditions precedent at all, and there are no conditions which affect the rank of Mr. Young, except the acceptance. He is directed to take an oath, to report his age, his residence when appointed, and the State in which he was born. If he failed to report his age, or reported it incorrectly, would he be for that reason liable to be 373 ^g cedent ditions are no affect cted to d, and ige, or i to be treated as being without rank in the Confederate army ? If he were captured on duty by the Federals, and they could succeed in proving that he had not taken the oath ; or if he failed to prove that he had taken it, could they haug him as an uncommissioned marauder ? I ask these questions because it is sufficient to put the propositions of my learned friends in that form, to render reasoning upon them superfluous. But my learned friends will say the acceptance is more important ; that it is essential. I think myself that evidence of an acceptance of some kind, either expressed or implied, is important, but I contend we have it here in half a dozen forms. Before entering upon tlic evidence of acceptance, I would remark, however, tliat the test of Mr. Young's rank in the Confederate army, is the rank which he is recognised to hold, and which is allowed to him by the military authorities of the Confederate Government. It is not for a neutral nation or a neutral Court, to enquire how far a foreign iState is justified by its own laws, cither in conferring rank on its own sub- jects, or, what is equivalent to it, in recognising one of its own sub- jects as possessing a certain rank. The best judge, so far as we are concerned, whether a man holds rank in the Confederate army, must surely be the head of the war department of those States ; and if he recognises Mr. Young or any one else as an officer of that army, treats him as such, confides to him as such important enter- prises and an independent demand, it does seem to me impossible for us, as neutrals ; or for the other belligerent, who is now an appli- cant before this tribunal ; to deny him that position. Our Sovereign has recognised the Confederate States as belligerents. Surely we cannot deny them the right of appointing their own officers, or of deciding, in the last resort, so far as we are concerned, who are or are not their own officers. If this be conceded, — and I do not see howitcanbe denied, — the matter is settled by the three letters of instruction marked N, 0, R. These papers show that Mr. Young was recognised as a Lieut, in the army of the Confederate States ; . and they convey to him not only the power to organise a company of twenty men, but numerous instructions of a peculiarly onerous character which will be hereafter referred to. Paper N, (p. 80,) is as follows : Confederate States of America, War Department, Richmond, Va., June 16th, 1864. Lieut, B, H. Young is hereby authorized to organise for special service, a company not to exceed twenty in number, from those who belong to the service and are at the time beyond the Confederate States. ■ 'V I' ,s.. u,. ■?;-. 'I?. 374 r ■■'■ .■ 'i i'^ ; ■ -'*'■ K '.;-. 1 ■'■■''' r.:'t ,., ■ If". ■ ''!■ fet; if f i I- i',^'^ ■!•■■.; ll^ They will bo entitled to their pay, rations, clothing, and trans- portation, but no other compensation for any service -which they may be called upon to render. The organisation will bo under the control of this Department, and liable to be disbanded at its pleasure, and the members returned to tneir respective companies. JAS. A. SEDDON, Secretary of War. Paper R (p. 216) says : Confederate States of America, War Department. Richmond, Va., June 16th, 1864. To Lieut. Bennett H. Young : Lieut., — You have been appointed temporarily 1st Lieut, in the Provisional Army for special service. You will proceed without delay to the British Provinces, &c., &c JAMES A. SEDDON, Sec. of War. Paper (p. 206) is as follows : Confederate States of America, War Department. Richmond, Va., June 16th, 1864. To Lieut. Bennett H. Young : Lieut., — You have been appointed temporarily First Lieut, in the Provisional Army for special service. You will proceed without delay by the route already indicated to you, and report to C. C. Clay, jun., for orders. You will collect together such Confederate soldiers who have escaped from the enemy, not exceeding twenty in number, that you may deem suitable for that purpose, and execute such enterprises as may be" indicated to you. You will take care to organize within the territory of the enemy, to violate none of the neutrality laws, and obey implicitly his instructions. You and your men will receive transportation and customary rations, and clothing or communication therefor. JAMES A. SEDDON, Sec. of War. I submit as a perfectly unassailable and incontrovertible propo- sition, that each one of these documents proves that the Government of the Confederate States of America, by the head of its "War Department, has recognised and acknowledged — and if we may judge by the active interposition of the President of the Confed- Mi- m:: m-' 375 War. propo- bnment Its War re may confed- erate States, and of the Secretary of State — in authenticating and transmitting to this country, the copies of these documents which were brought from Richmond by Mr. Cameron ; do still acknowledge and recognise Mr. Young as a Lieutenant in their army. And that if the commission itself and any two of the other papers had been lost, and could not be proved before this Court, the remaining one, whichever it might be, would sustain my position. I do not of course put this part of my argument in any respect upon the ground that the Confederate States are entitled to recog- nition by your Honor, as an independent and sovereign State, as Mr. Carter this morning assumed that we did, or that it was neces- sary for us to do, in order to establish Mr. Young's rank. The Government of England does not recognise the Government at Richmond as independent, but it does recognise the Confederate States as belligerents ; and the very authorities cited by Mr. Carter shew that the recognition of a party to a civil war as a belligerent, involves the recognition of every right which is necessarily incidental to a state of war. Now the power of issuing commissions, of appoint- ing officers in its own army, is certainly necessarily incident to a state of war, and to the position of every belligerent ; and it is a right which we must recognise in the Government of the Confederate States. If so, we must permit that Government to appoint the officers in their army, and we must admit that it is the best judge as to those who have been so appointed. Do my learned friends presume that President Davis and Secretary Seddon do not know whether or no Mr. Young has been validly appointed a Lieutenant, taking rank from 16th June, 1864 ? The latter says, in writing to Mr. Young : " The President has appointed you First Lieutenant in the Provis- ional Army of the Confederate States, to take that rank, from the 16th June, 1864." Is that false, or a forgery ? They have not attempted to urge that it is a forgery. Mr. Bethune. — We have not said so. Mr. Abbott. — No, they have not presumed to say bo, although they undoubtedly would have said so, had there been the slightest foundation for such an imputation. Mr, Bethune. — Have we charged any one testifying for the defense, with an untruth ? Mr. Abbott. — Yes, you have charged Mr. George N. Sanders with an untruth. One part of his testimony has been quoted by the prosecution ; while another portion, which destroyed the infe- rence attempted to be d;awn from the first part, has been slighted by you as unreliable. After some further discussion, and the disclaimer by Messrs. Bethune and Devlin, of any intention to assail the veracity of Mr. Sanders, as a witness, lii .M dm I I \m % M ,'/■ ■■'<"■''■' iv^' p-'^ 'r ■ J ■■ ■ ' rK' '• ■ Ir/ i ' *■■■ li ■ ST. l ( ili i- I 376 Mr. Abbott resumed. My learned friend, Mr. Devlin, has appeared to rest an objection on the ground that this document did not emanate from the President direct. But no one is generally recognised as being more competent to decide whether any named official act has been done or not, than the head of the appropriate department of the public service. No one could be more com- petent to establish, that this particular act was done in a foreign country, than the Secretary of War for that country. I suppose ■\vc should consider the Secretary at War for England the best authority, as to whether or no such and such persons were ever commissioned by the Government, as officers in the army of that country. If we had written instructions from the Secretary at War, or even from the Deputy Adjutant-general of MiUtia, addressed to my learned and gallant friend. Col. Devlin, as colonel of the Prince of Wales llifle Regiment, by his name and rank, we should have no difficulty in sustaining his action on those instructions, ■without requiring the production of his commission, even if his rank and the gallant regiment ho commands were less conspicuous than they are. And if a foreign country or Government, whether Federal or Confederate, were to refuse to recognize his action under those instructions as an officer of Her Majesty's loyal volunteers, he would feel even more indignant, if possible, than he has shown him- self to be, at the proposition that Lieut. Young is entitled to the ben- efit of a similar recognition. What would he think or say if he were told, we will not accept that evidence of your rank ; we must have the signature of Queen Victoria herself ? But really, such objections as this are the merest trifling, and are unworthy to be urged before any Court. It is necessary, however, since they have been started, to examine and to answer them, and I proceed with them, as a task which must be completed. My learned friends have urged with considerable earnestness that we must presume that Mr. Young did not report to the Secretary of War, his age, residence, &c., &c., nor take the oath, nor accept; because they say we have not got authentic copies of these documents — and they say de non apparentibus, et non existentibus eadem est ratio. Now I have already shewn that none of these proceedings were conditions precedent to Mr. Young's holding the rank of lieutenant ; and as they were not, and were in fact mere routine matters in the department of war, they were in no respect necessary to be produced here. The point to be proved here was not the taking of the oath by Mr. Young, the return of his age, or any of these minor formalities. The point was Mr. Young's possession of the rank of lieutenant, and that is now before your Honor. He was appointed and ordered to do what his instructions shew — and he did it. Is there any better proof of the :i '4 , 377 has D did rally imcd iriatc com- reign pposc I best ever f that iry at ressed of the should ctions, s rank s than federal r those 2rs, he vn him- hc bcn- le were st have ections before started, Is a task lestness to the |he oath, copies et non I at none [Young's were in 1 were in 1 proved return Iwas Mr. |w before vhat his lof of the acceptance of an appointment tlian entering upon and performing its duties. Mr. Bethine. — He should have accepted by letter. Mr. Abbott, — Probably the letter of acceptance and the oath with the required reports were returned together to the Adjutant General. IJut if the acceptance wa^^ not in writing, what was the conso(iuence ? Was the appointment invalid — even tlio\igli the Con- federate Government were satisfied with a verbal acceptance or with one signified by deeds, not words ? Surely that direction was not inserted in the interest of the Federal Government. — And if the Confederate Government chose to employ Mr. Young upon distant and dangerous enterprises, without waiting for or re([uinng a written acceptance of the trust they confided to him ; it is not for the Federals to insist that they acted illegally by doing so. Whether Mr. Young did or did not send in an acce})tance in writing or take the oath, I confess my entire ignorance. The reverend gentleman who so devotedly and gallantly incurred all the dangers of a pas- sage through the Federal lines to Richmond, was not instructed to procure copies of these insignificant papers, nor would he be charged with such a commission if the affair were to be gone over again. Mr. Bethune. — Nor the necessary confirmation from the Senate ? 3Ir. Abbott. — No, it was in no respect necessary. 1'he Senate was not in session when the appointment was made, and the confirma- tion for the issue of a commission was in time at any time during its session, which lasted till long after Mr. Cameron left Richmond. If this confirmation of the Senate was requisite to entitle him to act as an officer at all, then the confirmation subsecpient to the 19th October would have had no legal effect. And we should then assume that the Government of the Confederate States were mistaken in believ- ing that Young was an officer of theirs on the 16th June ; that they were entirely ignorant of their own powers as belligerents ; and that we know better who were their own officers, than they do th -.'. i elves. It would scarcely be a step further in absurdity, to prono; nee a judgment in this cause, ordering the Confederate Government to repay to this Province the -1^50,000 voted to repay the St. Albans banks ! We have in fact, from the Secretary of War, three documents, bearing date 16th June, 1864, in which Bennett H. Young is addressed by his official title as Lieut. Young ; is given specific authority as such to raise a certain number of men to act under his orders, and is instructed where he is to go and what he is to do with those men when raised and organised. Surely this affords sufficient evidence that Mr. Young had accepted to the satisfaction of his Government, the commission conferred upon him. If he had not ; would Secretary Seddon have given him this authority and those instructions ; would he have conft^rred upon him an important com- V-! f ■■ \ * i'i ■in I't B I t.A: ■I; ■ U ;S'i' ■IS.-'' 'A ''^,i'il.' 'I .ill *- *ii p ' '■'■' ? 1 N ■ J * 378 mand for special service ; would he have sent him by a dangerous and circuitous route to a distant frontier ; would he have authorised him to draw rations and transportation allowances for himself and his command — and all as incidents to a rank which he had not accepted, and actually did not possess ? And if he had not accepted liis commis- sion, how was it that he assumed its duties, that he did proceed by way of the British Province to the Northern frontier — that he did report to C. C. Clay — that he did organize his command from among the Confederate soldiers within the enemy's lines, viz., at Chicago ; and iu fact that he obeyed his instructions in the minutest particular. There is no better settled rule of law than that the performance of the duties of an agent implies the acceptance of the authority — and in fact constitutes such acceptance ; if indeed so obvious a principle requires a rule of law to enforce it. But even if tfic Secretary of War had chosen to give such instructions to a civilian, and to address him by a military title, and if they were acted on, would not such civilian quoad those instructions, have all the privileges and immuni- ties incident to the rank in which he was acting, and was so em- powered to act ? The pretension of the prosecution in this behalf is not, really, susceptible of argument. Here is a man, recognised by the Govern- ment, to which he owes allegiance as an officer — recognised as such by repeated written instructions from the highest official in the state department of that Government. And your Honor, sitting here, is asked to deny that he is such officer ; you are seriously asked to say and think, that Secretary Seddon Avas wrong in saying that the President had appointed Young ; that he was premature in giving him these instructions ; that he had no right to place Mr. Young in command of twenty men ; that the authority to Mr. Young to draw pay and rations, clothing and transportation for himself and his command, was null ; and that he was premature in sending him, by way of the British Provinces, to operate on the Northern frontier of the United States with which his Government was then and is now at war ! Surely it is impossible that any Court in a neutral country can assume such a position as this, and hold that official documents issued by the highest official of another State have no yalue at all ; and that contrary to the necessary inference from these documents, conditions were imposed preliminary to giving effect to this commission, which were never performed. The question of the validity of this commission from Mr. Carter's point of view, I shall discuss at a subsequent period of the argu- ment. What I have hitherto said respecting it, has been entirely based on itself, and on the three documents issued from the War Department. But there has been parol testimony placed on re- cord about this document to which I shall refer as sus?^^.ining my 379 views. Adjutant ficncral Withers (p. 205), Bri^^adicr (Jcncral Carrol (p. 207), Dr. Fallen (p. 209), Mr. Clcary (p. 211), Major Wallace (p. 212), all swear in effect that the instrument, paper M, is the only form of commission used in the Confederate army, and give other information as to its nature and effect, for which I refer to their testimony. Judge Smith. — As to the acceptance, it is said hy these witnesses that the oath is returned to the department. Is there any evidence of that ? Mr. Abbott. — None, except what is to he drawn from the fiict that the Secretary of War subsequently gave him his instructions as an ofRccr. Mr. Bethune. — Both were written at the same time and issued on the same day. Mr. Abbott. — So it folloAvs that because they were written on the same day, they must have been written at the same time ! Surely the presumption is the other way. If there were any conditions precedent to his becoming an officer to be performed in the war department, the natural inference is that he performed them : since the Secretary of War is the head of that department, and must be presumed to know whether they were complied with it or not. And if the instructions bear date the same day as the commission, and attribute to the recipient the rank named in that commission, the presumption is not only that the instructions were subse(}uent to the commission, though on the same day ; but also that the condi- tions were performed in the interval. Mr. Devlhi. — The Secretary of War says — " you have been ap- pointed." Do you suppose he would have been informed of his appointment, if he had already sent in his letter of acceptance of that appointment ? Mr. Abbott. — Well, this is rather strange reasoning. My learned friend's logic just amounts to this — because the Secretary of War says, " you have been appointed," the inference is that he had not been appointed, or that the appointment was not complete. Mr. Devlin. — No, you pretend that the instructions followed the commission — that there was a lapse of time between the issue of each. I say the instructions, on their very face, show they must have been prepared ; if prepared by the Secretary of War at all ; at the same moment that the so called commission was made, be- cause he states in the instructions — " You are hereby informed you have been appointed First Lieutenant," and so forth. Would the Secretary have said on that occasion, that Young had been appointed if he had already been made aware of the fact ? Why in- form him three times, in three different papers, that he had been appointed ? ft: 4 ■ .J ■ '':m\\ i- I,.) • > s !!|> , ■ 'v 1 380 Mr. Ahbott. — The ar^rumcnt comes to this : The Secretary of War had 30 much time on his hands as to inform Mr. Yo\in;^ in three different documents tliat lie hait whether it he so or not, no presumption acfiiinHt the ai)])ointment can he drawn from the fact of the asser- tion of it heini;; several times rej)eated. If it were so, however, the fourth paper (N) would set the matter right. It does really say — " Lieut. W. 11. Young is hereby aiithorized to organize," &c., and does not a fourth time inform him of his appointment. With regard to the other prisoners, we have evidence establishing their (piality and jiosition. Tljis is to be found in part in a docu- ment to which Afr. Hethune takes much exception. This document bears the signature of the Secretary of the Confederate States of America and the great seal of those States, and was specially di- rected by President Davis in person, to t)c handed to the Uev. Mr. Cameron, whom he appointed a special messenger to bring it to this country; and Mr. Cameron swears ho delivered it here in the same state as when he received it. After all this, my learned friend (Mr. JJethune) states it contains three forgeries. Mr. Bethune. — I did not say "forgery" at all. 3Ir. Devlin. — " Alterations." Mr. Bethune. — In other words, I say it is a " cookcd-up" docu- ment. Mr. Abbott. — That is not much better than the epithet I attribute to you. Your Honor will sec that the " alteration," or " cooking up," consists in this: that the document in question has evidently been copied in a very hasty manner ; and being the muster-rolls of several companies in the Confederate army, it consists almost en- tirely of proper names, which are always difficult to copy cor- rectly. It certainly contains many mistakes in spelling and transcription, such as " B. 11." Allan, for " B. R." Allan, which has been " cooked up," by being corrected, though Mr. Allan is not in this case. In fact, your Honor will see many other names, perhaps a tenth of the whole, similarly " cooked-up." I shall take the liberty, however, of calling these corrections in the spelling of the names, — made, doubtless, in comparing the transcript with the original. At all events, those papers are certified by the proper officer to be correct ; and it would be more charitable as well as more accurate to say that they were incorrectly copied in the first instance, and that in the names of two of the prisoners a very slight change was made, namely, that of one letter, as in tlue name of Tevis. ' • ." t . 381 Air. Bethune. — lie is Fcvia in both instances. Mr. Abbott. — Oh no. There is a very slij^ht alteration in one letter in each of the names Tevis and Swa^^cr, which the learned gentlemen opposite say were " cooked up ;" from which they ar;;iic that the document affords no evidence tliat those names were origi- nally on the muster-roll. In the case of Huntley, it is said that the letters required to complete the name of Hutchinson were added to the initial II. But there is nothing in the paper itself to indicate that there has been any such addition. Tho name is there in full, " Huntley, \Vm. Hutchinson." That the document has boon [)ro- pcrly corrected, is undoubtedly the fact. But supposing my learned friends discard the letters rocjuired to make up Huntley's second name, they have the name of Huntley, which is proved to be tho name of the person at the bar. Mr. Jit'thiine. — But he swears his name is Hutchinson. Mr. Abbott. — You are mistaken again. Ho has never been Bworn at all. Ho has been known as Williiua H. H\itchinson instead of William H. Huntley, which is not a very extraordinary perversion of his name in a strange country, under apprehension of arrest ; but whether it be or be not is of no consequence to this case. The identity of the man as William II. Huntley is proved by his passport and oral testimony, as also the fact that he is a citizen of Georgia, and a soldier in the Confederate army. It is a very strange fact, however, in connection with the charge of " cookii.g- up" the muster-rolls, that the parol evidence Ave put on record when we despaired of getting these papers, exactly corresponds with the facts on the face of those i)apers, although it was impos- sible for the Secretary of State and I'rcsident Davis, while " cook- ing them up," to know what testimony was thoii being given in Montreal. Strange to say, on the mustor-roU of the 2n(l Kentucky Infantry, sent us from Richmond, but which we did not get till after the evidence of Withers had been taken, avc find the name "f Charles M. Swager, in which company his fellow-soldiers swear he was a private. If this statement is true, where was the necessity for the paper being " cooked-up " in Richmond? And how did the Richmond cooks discover Avhat had been sworn to, since Mr. Cameron had left Canada long before Withers gave his evidence ? And if the statement is false, then Adjutant-General Withers and Dr. Fallen have sworn falsely, and by some miracle, news of their false • ihs reached Richmond in time to have the papers " cooked up," to endorse their perjury. The same remarks, moreover, apply to the case of Tevis. He is sworn to be in Chenault's troop of Kentucky cavalry, and the muster-roll shows he was. But we had sufficient evidence before these muster-rolls came to hand, that the prisoners were Confederate soldiers, and it is to be found in the 'Y* J : I ' y' h-: ;i;. 1 I' w- |:1^ |i m> ■ 1^ .»c 382 testimony of Allen (p. 200), Bcttesworth (202), Wallace (201), Stone (203), Withers (205), and Fallen (208). This testimony is quite conclusive: yet the learned gentleman spent half an hour in trying to show that the names of the men were " cooked-up" on the muster-rolls, though those rolls and the parol evidence exactly agree — and though he and his colleague have distinctly denied any intention of disputing ; and in fact could not dispute, the veracity of our witnesses. I would now ask your Honor to look at Young's instructions, and see what their real character was. I propose to examine this affair from the moment of time Mr. Young proceeded to Richmond and got his commission, upon the recommendation of Mr. Clay, down to the time of the St. Albans raid. I propose to trace out every particular of it, and to show by the evidence of record, step by step, what was probably contemplated by the commission of Yoang and his mission northward ; what he and his command were authorized to do, and by whom and how they were so authorized. The purpose for which Mr. Young was commissioned may be gathered from two sources of evidence. Mr. Cleary tells us that Mr. Young went to Richmond with a recommendation from Mr. Clay for a comiiiission, " for service within the enemy's lines, that is within the Northern States," on their northern boundary, and but for the objection of the Counsel for the prosecution, we should have had full information on this subject. Major Wallace states (p. 212) that he was in Richmond in September, and that it was then notorious there that the war was to be carried into New Eng- land, in the same way that the Northerners had done in Virginia. We know that Young went to Richmond in May to get his commission, for we find him in Halifax in that month, about to run the blockade; we see that he was ordered on the I'lth Juno to " proceed" to the British Provinces, which would not have been the case if he had been in these Provinces at the time ; and we find him at Toronto in July, " on his return," in possession of his commission and of his instructions. If my learned friends had taken those instructions in their natural order they would have been more easily understood. The first in order is paper N (p. 80), characterized by Capt. Withers as a detail for special service ; and as the detailed instructions are not contained in it, it is called a detail for secret service. The second paper is the one wliich my learned friends read last. It is the paper R (p. 216), which requires Lieut. Young to proceed to the British Provinces, and report to Messrs. Thompson and Clay for orders ; and the third letter, paper (p. 206), directs him to proceed " by the route indicated," that is by way of the British Provinces, and to report to C. C. Clay, Jun., for orders, giving him also further directions as to his com- •' < 383 i mand, and as to their organization, management, and maintenance. These instructions appear to me fully to sustain the opinion that Lieut. Young and his party were to operate against the northern frontier of the Northern States. I am speaking of this entirely irrespective of the question whether the Confederate Secretary of War was justified in sending the prisoners here, or in giving Mr. Young those orders ; or whether in obeying them Lieut. Young committed a breach of our neutrality. I am considering what really was the intent and meaning of the orders issued to him, and I contend that his commission was actually given to him for the express purpose I have indicated, by his own government ; that the instructions given him in Avriting clearly point to that purpose ; and that in what he did he was merely carrying out that purpose. The instructions produced direct him to proceed hither and to report to Mr. Clay ; to raise a pai-ty of twenty men, similar to those Capt. Withers describes as being knoAvn in the Confederate service as partizan rangers, or small bodies of men acting inde- pendently. This party was to be organized within the enemy's territory from among escaped soldiers ; they were to be furnished with transportation, &c., by Mr. Clay; to undertake such enter- prises as should be entrusted to them ; and to obey implicitly his orders. As Mr. Clay then resided near the border, the inference as to the nature of these enterprises seems plain. It could not have been in Canada that these enterprises were to take effect, for they could gain nothing by imitating Federal agents in kidnapping people for their armies. The only intelligible object in sending Mr. Young here, and in authorizing him to raise a party of this des- cription, was to enable him to assail in some way the enemies of his country on their northern frontier. There can be no doubt the intention was to attack their towns ; but whether this was to be done in one way or in another does not appear from the evidence. Whether it was intended that they should wage a guerilla warfare, maintaining a precarious existence within the enemy's borders, or whether they actually contemplated the use of our territory, can- not be ascertained from the testimony of record : though the order to organize in the territory of the enemy would seem to indicate the former course. Nor does it in fact appear whether the greater portion of Lieut. Young's command passed from Chicago to St. Albans through Canada, or through the Northern States, as only four of the number are proved to have passed through Canada. How the other seventeen reached St. Albans, is not shewn nor does it in any way appear. But I am not at this moment dealing with the question, how the matter stands between the Confederate States and the British government ; nor whether the former has or has not given the latter reason to demand satisfaction for violating its territory. I (t 1 m\\ i- ! -f I v, ■5 >! ^1 m 384 W •,■'■-■1 U i " B iiiiiiv! m If it should become necessary, I believe I can show that these ques- tions must be answered favorably to the prisoners. I am not argu- ing that Mr. Clay did or did not render himself liable to be sent out of this country for having carried out the instructions of his Govern- ment. I repeat that I wish to arrive at a clear understanding of the facts before I attempt to deal Avith their consequences. For these purposes then Mr. Young is required by his instructions to organise a party " within the territory! of the enemy" ; the party to be of twenty men, " escaped soldiers " as they are described in one place, and persons " in the Confederate service beyond the Con- federate, lines," as they arc characterised in another. So far then I have established the appointment and recognition of Young as an officer in the Confederate army ; his instructions to proceed iVom Richmond to the British Provinces and to report to Mr. Clay ; his authority to raise twenty men from among escaped prisoners or from among persons beyond the Confederate lines belonging to the Confederate army ; his directions to organize in the territory of the enemy ; and to operate within the enemy's lines. Did he obey these instructions ? A short review of the evideno« will answer that question. Mr. Clcary declares that he did report himself as directed Avhen he returned from llichmond in July, immediately after having re- ceived his commission at Richmond upon Mr. Clay's recommen- dation. 3Ir. Betliune. — Docs anybody prove he ever was in Richmond ? Mr. Abbott. — Not from having actually seen him in Richmond. But it was proved that he was in Toronto early in the spring of 1864, when he was recommended by Mr. Clay for a commission ; that he left Toronto in the spring with the declared intention of proceeding to Richmond ; that he was in Halifax in May on his way to Richmond ; by running the blockade ; that his instructions in Richmond in June required him to " proceed" to the British Provinces ; and his re- turn to Toronto in July with his commission and instructions is spoken of by Clcary and by other witnesses. These facts are suf- ficient to prove a side issue of this kind ; and the only evidence to the contrary is that Young attended lectures in Toronto in the fall and winter of 1803. Mr. Betlmne. — And in 18G4 was living in Toronto. Mr. Abbott. — In July 1864 he passed through Toronto, report- ing himself to Mr. Thompson according to his instructions. Mr. Cleary's testimony fully explains all that. But it is also proved that before the raid was planned, he was actually in Chicago, in the capacity of a Confederate soldier, combining with his brother sol- diers and their friends and allies there for the purpose of breaking into Camp Douglas, and of releasing the prisoners there confined. 385 (jues- ; argu- mt out overn- ling of Lictions larty to I in one le Con- ar then Lg as an ed iVom ay; his mers or (T to the ■y of the svidcnoe ed when iving re- commen- ;hmond ? ^chmond. , of 1864, that he jceeding jchmond ; in June ft his re- itions is are suf- [ence to the fall [, report- Mr. proved in the ther sol- M-eaking lonfined. This was in August and the beginning of September last, within little more than a month of the attack on St. Albans. Yet the Counsel opposite pretend that Mr. Young had acquired a domicile in Canada ; that he was here, as Mr. Carter says, animo manendi ; that he had in fact lost his national character ; and was a British subject for the time. Yes, they say this, although this man is proved to be a Confederate subject, actually serving within a few weeks of the raid, as a soldier of the Confederate States ; and then actually engaged within the enemy's lines, in an attempt to break into an enemy's fortress, to release his fellow-soldiers. To assert that a man who takes refuge in this country as an escaped prisoner of war ; who first raised the Secession flag in his native Kentucky ; who has been a soldier of the South since the breaking out of the war ; who is promoted from a private to a Lieutenant, after escaping from the enemy — who goes back to the territory of that enemy to engage in a most dangerous service ; pre- pared to peril his life to release his fellow-soldiers from duress ; and not only to risk his life — but to expose himself to the most degra- ding of deaths ; at Richmond, in June, receiving his commission and his instructions from his Government, at Chicago, in September ; at St. Albans in October ; was " domiciled in Canada :" that this " domicile" was the " test of his national character;" and that he became incapable of legal hostility against the Federal States — is to assert propositions of law and of fact that are neither sustained by the authorities nor the evidence ; and that are revolting to common sense and to common justice. In fact they are propositions about equidistant from the law, and from the evidence. They arc as little sustained by the one as by the other. To return to the evidence at the point at which my learned friend interrupted me, T say that Mr. Cleary ; who is an employ^ of the Department of State at Richmond, acting as Secretary to Col. Thompson at Toronto, proves that Young reported himself there, exhibited his commission, and made known his instructions, (pp. 210, 211, 216), — and that he left afterwards to report to Mr. Clay. (Cleary, p. 211.) Mr. Young did, then, follow his instructions to proceed to the British Provinces and report to those gentlemen, and shortly after- wards we find him at Chicago, where he remained during the Con- vention held there. The object of the rendezvous of the Confede- rate soldiers at Chicago, is described by Bettcsworth and Stone, and they give us details of the proceedings of Lieut. Young in pre- paration for the attack of St. Albans. We all know the enterprise contemplated was not carried out ; the Federals got wind of the aifair ; the guards at Camp Douglas Avere doubled, and other cir- cumstances intervened to prevent the attack. But this was the z if! '■ 1V-: ,-\ i : ■■J»;;. ■■ ,5 n ■-. h'i n.':. i i 386 time and place at which the raid on St. Albans originated. The enterprise then planned is described and proved by Bettesworth and Stone. Mr. Bettesworth is the person who was arrested without a war- rant, on a charge against him at Quebec, on suspicion of being one of the discharged prisoners. After proof had been made ])eforo Mr. Maguire that he was not one of them, he was transmitted in custody to Montreal, where he arrived on Friday morning, and was consigned to the gaol — still without a shadow of a charge . against him, and retained there among common malefactors, till the following Tuesday, when the Counsel for the prosecution, stating that they had no charge against him, called him out of the dock into the witness box. They doubtless hoped that his intimate rela- tion with the prisoners during eight days of incarcerntion, had led to confidences which they could force him to disclose ; and the idea was certainly ingenious — if not remarkable for its delicacy or humanity. On cross-examination Mr. Bettesworth tells us (p. 188 > that during the convention at Chicago in August last, there was an organization going on there for the release of tlio Confederate prisoners at Camp Douglas, in Avhich Young and Spurr took part. llo was aware that a raid Avas being then organised there for the purpose of plundering and burning the Northern towns on the liMMitier — and that Young and Spurr were engaged in that organi- zation. And when afterwards examined fur the defence (p. 201), he proves that the fact of Y'oung having a commission, and of his collecting a party with the authority of the Confederate Government for a raid on some point of the Northern States, which he was to lead, was then perfectly Avell known among the Confederates in Chicago. 3fe further proves that arms and material of war were stored in Chicago for such purposes, and that these raids were intended to serve the Confederate Government, and not any private object. Mr. Stone (p. 203) is still more explicit. He was also with the party at Chicago, and he Avas aware there of the organization and ^)f the whole plan of operations, lie was applied to, there, to join Y'^oung's party, by Y'^oung himself. lie knew that Y'oung was to be the commander of it ; he Avas shoAvn the instructions to raise it ; he Avas aAvare that.Avhen it Avas collected, a report Avas^to be made to Mr. Commissioner Clay, Avhose instructions Avere to be their guide. And finally he kncAv that the recpisite men had been obtained, and that St. Albans Avas the point aimed at. This is actually all the evidence of record, Avith reference to the place where this expedition Avas organized ; and I Avould like now to fee informed Avhere my learned friends opposite find the proof of what they one and all assert with such vehemence, that this St. Albans raid was organized in Canada. Where is there in the The orth wav- T one made litted ;, and hargc ill the tating 3 dock c rela- lad led ,nd the 3acy or ^. 1^8) was an cdcrato- 3k part. for the on the ; organi- 3. 201), of his crnment to lead, hie ago. torcd in nded to iject. ■with the tion and , to join as to be it ; he made to ^r guide, ed, and 5 to the now to [proof of hat this re in the 387 depositioi in this case, a scintilla of evidence — anything even from which any inference can be drawn — that a single man of this expedition was engaged in Canada ; that the party was organized in Canada, or that anything in regard to the matter was done in Canada, beyond Mr. Young's communicating with Mr. Clay. Mr. Johnson asserted in his speech lately, that this expedition was " authorised in Canada, proceeded from Canada, and returned to Canada." I venture to say the whole tenor of his argument was to that effect ; and the substance of the wliole of the arguments of the learned gentlemen opposite, but especially that of I\Ir. Devlin's speedy was, that this expedition was organized in Canada. Mr. Betliune. — I said so, and repeat it. Mr. Abbott. — Then I ask my learned friend upon what evidence he made, or now repeats that assertion ? What is the organization of an expedition of this kind ? Docs it consist in the issue of the commission of the commander ? If it docs, this was organized in Richmond. Does it consist in the instructions to raise a party for the purpose of entering upon it ? If so, this again took place in Richmond. Or does it consist in the arrangement of the plan, and in the engagement of the men to carry it out ? But this all took place in Chicago. And this in fact is really what is under- stood by the organization of such a.i c.'^pedition. The evidence on this point is in tlie most positive terms language is capable of ; and so far as the evidence of record goes, we have nothing to shew that Young and his men ever met again, till they reached the rendez- vous at St. Allians. The party was composed of " Confederate soldiers who had escaped from the enemy," (papers and R,) it was " organized within the territory of the enemy," (paper (),) as Stone has said " for an expedition against the town of St. Albans," and, as is sworn by Bettesworth, for an attack on some part of the Northern frontier of the United States. They perfectly agree ; Bettesworth did not know the precise point of attack as settled in Chicago, but Stone did. Was t'.iat organization or was it not? If that be organization, and I contend it is, if the word means any- thing at all ; all that is comprehended in it, was done in Chicago. Mr. Devlin. — Do you argue that before Young received instruc- tions from Mr. Clay, it was competent for him under his previous instructions, to organize a party to attack St. Albans ? Mr. Abbott. — Certainly. Mr. Garter. — Will you state Avhere Yovuig, was when he sug- gested to Mr. Clay the raid on St. Albans ? Mr. Abbott. — Whether Mr. Young had any precise instructions from Mr. Clay or Secretary Seddon before he organized his party we do not know. The evidence is that Mr. Y^'oung was sent here under circumstances and with instructions which indicated an w Iv ,1 >*■■. It ' ■■ 1,.',: i: hi'-' iA ■1 ..1. 'f'M II si Si M i'l ?;.■'■ ^^^ If' I it.' 9; r. ■ r 388 intention to attack the Northern frontier of the Federals ; but we do not know the precise nature of his private instructions, being aware only that he was to report to Mr. Clay, and take details from him. The well defined nature of Young's intentions when in Chicago, lead to the inference that he knew what he had to do, either from Mr. Clay or Mr. Seddon, — but whether he did or not, he had a perfect right to exercise his judgment in selecting his point of attack, so long as he was careful to get that selection approved by the proper official before he acted on it. He knew that the intention was to attempt to carry the same kind of warfare into the Northern towns which was practised in the Southern cities by Northern troops. And the expedition to St. Albans was sug- gested and planned by Mr. Young himself, and Mr. Clay, under the authority given him by his Government, approved of it, and required it to be carried out. The direct written authority for this particular act received from Mr. Clay is to be found at page 209 of the printed evidence, being paper marked P. It is as follows : ^'- Mem. for Lieut. Bennet Young, 0. S. ^." " Your report of your doings under your instructions of 16th June last, from the Secretary of War, covering the list of twenty Confederate soldiers who are escaped prisoners, collected and enrolled by you under those instructions, is received. " Your suggestion for a raid upon accessible towns in Vermont, commencing with St. Albans, is approved, and you are authorised and required to act in conformity with that suggestion. " October 6th, 1864. " C. C. CLAY, JUN., " Commissioner C. iS. -4." The evidence of Dr. Fallen (p. 209) and of Mr. Cleary (pp. 210 and 211) prove the genuineness of this paper, and if more were wanted, there are numerous circumstances confirmative of it in every respect. Mr. Cleary (loc. cit.') was informed by Mr. Clay himself a short time after the raid occurred, that he had authorised it, and that his authority was in writing. Mr. Lewis Saunders (p. 217) was present at conversations between Mr. Clay and Lieut. Young after the return of the latter from Chicago, in which the burning and pillage of St. Albans were discussed ; and he knows that Mr. Clay advanced Lieut. Young 1400 for the expenses, as the instructions authorised him to do. Your Honor will perceive how perfectly consistent all this evidence is with itself, — Mr. Young reports his doings and his list of twenty men, enrolled at Chicago ; and he makes his suggestions for the raid on St. Albans. All of which is in exact accordance with the t v?e icing jtails en in do, f not, 2 his sction knew arfare cities ,s sug- under it, and :or this crc209 th June twenty ted and ermont, ihorised iry (pp. lit* more live of it by Mr. he had ■r. Lewis llr. Clay )cago, in and he [xpenses, jvidence twenty for the nth the 389 proof as to the proceedings at Chicago. And all this is in con- formity Avith his instructions from Mr. Seddon. Mr. Clay says, Your report and muster-roll are received with your suggestion, and you arc authorised and rcciuired to act in accordance Avith that suggestion ; and he furnishes the means of transportation, &c., accordingly. And all this is consistent with the functions of Mr. Clay as indicated by the instructions from Mr. Seddon. Paper P is, no doubt, a formidable document, and my learned friends feel they nmst use some extraordinary means to get rid of it. For my part, I cannot say that I consider it essential, for I should 1)0 perfectly prepared, if this pa})er Avere not here, to shoAV by authority that could not be disputed, that, under the commission held by Mr. Young, he had a perfect right to sack and burn St. Albans. But I am saved that trouble, being able to produce the specific authority given to the commander of this party by the diplomatic agent of his Government, under tli? authority conveyed to him by that Government, in the instructions he held and has proved before your Honor. My learned friends treat this paper very characteristically. Mr. Devlin volleys forth voluminous enquiries about the gentleman Avho signed it. He demands in indignant tones Avhere C. C. Clay is ? and, attracted apparently by the alliteration, he continues. Where does C. C. Clay, junior, come from ? " Where does C. C. Clay, junior, reside ?" " Where did C. C. Clay, junior, go to ?" " Why did C. C. Clay, junior, go aAvay ?" " Where did C. C. Clay, junior, get his authority ?" and so on through all the letters of the alphabet. But, lastly, and it is a question in Avhich the learned gentleman takes a peculiar interest ; he asks " What did C. C. Clay, junior, do Avith the money ?" Mr. Bethune takes a different course. He says this letter or commis- sion is a letter of marque, and that no poAver under heaven can issue letters of marque in a neutral country. And he says the date of the document is not proA^ed, for ades sous seinf/prive have no date. NoAv, I dispute both his propositions. I say it is not a letter of marque, and moreover I say that letters of manque may be and have been issued in a neutral country. I do not say that those letters of marque were legally issued quoad the neutral, but I say that their validity could not be disputed by the belligerent against whom they were directed ; and that the parties Avho sailed and acted under them could not be held to be pirates. It is a Avell known historical fact that Genet, an ambassador of France to the United States, issued at Washington numerous letters of marque and reprisal, even before he presented his letters of credence ; and Avliat was the consequence ? Were the holders of them declared to be pirates ? -Not at all. Genet was ordered to leave the country, Avhich he did ; P k iff" M w ■M ../.^tfl l> i^ Jii''\/' ■A p* ' 1 II ■a: '■■a 1 * ^^' 1 1 f ■ . |: w 390 but no one ever pretended that because lie Avas temporarily residing in the United States when he issued thera, they were such an abso- lute nullity that those acting under them were pirates. But the document in this case is in reality no letter of marque, and bears no analogy to such a letter. Mr. Bethine, — Will my learned friend point out any case in which Genet's privateers were declared not to be pirates ? Mr. Abbott. — I state that Genet did exercise that authority as representing the French Government, and that he was sent out of the United States because he did so ; and I say further that no person who acted under those letters of marfjue Avas ever charged with or convicted of piracy. Mr. Johnson. — That means that no English vessel ever caught one of those pirates and took him prisoner. Mr. Abbott. — What I state is a simple lact, that instead of Genet being extradited, he was merely ordered out of the country ; and I say further, that while historians and writers on international law have discussed the conduct of Mv. Genet, and declared it to be illegal, no dictum is to be found in any of them to the effect that acting under those letters of mar({ue, destroyed, in priva- teers holding them, the character of belligerency. Now with regard to the date of the document, I refer the Court to the case of Hayes against David, where this doctrine of an acte sous scim/ prive, having no date, is discussed and settled. The Court of Appeals, in that case, took the view that in the absence of proof of fraud, the presumption Avas that the date of document was correct. But this being a criminal matter, English laAvs must be referred to ; and if your Honor requires authority from that law to shoAV that the presumption is that all documents Avere made on the day they bear date (1 Taylor, p. 153), I can produce it. (His Honor was understood to dispense Avith any further authority on this point.) Mr. Johnson, in his turn, gives us his particular vieAv of paper P ; and it consists in a vehement burst of indignant declamation at the usurpation by ^Mr. Clay of the functions of our most gracious Sovereign ! So far as the genuineness of the paper is concerned, hoAvever, we are not left to mere presumption : we can trace it back to the period of the raid itself ; for Mr. Cleary swears that immediately after it occurred, Mr. Clay informed him that he had authorized it in writing ; and that the authority Avas in my hands. Mr. Bethune. — Do you call that evidence ? Mr. Abbott. — I say it is perfectly good evidence. I say that no better evidence could be produced touching the antiquity of a paper, than that at the time of its date the alleged writer of it described it to a third party, and stated where it was to be found ; .i«l ikling abso- it the bears ISC in i-ity as out of liat no liar icd cau dit ocad of )untry ; lational •ed it to c effect I priva- OAY ■with the case IS scin(/ lourt of Droof of correct, rred to ; lo-w that .ay they )nor was point.) 3f paper lation at rrracious that no lity of a iter of it |e found ; 891 and that it was found, and answered the description given of it by its author. When Mr. Cleary came to Montreal, two or three months ago, having been tokl — as he was by Mr. Chay himself — that this written authority existed, he asked for it, and found it to correspond with the description he had received of it. What be- comes, then, of the suspicion attempted to be cast on this docu- ment ? If my learned friends had adduced any evidence, however slight, tending to show that this paper was antedated, there would have been some reason for their objection ; but in the absence of conflicting testimony, the circumstances seem to me to be conclu- sive in favor of the document, independent of the presumption which arises from the purport of the document itself. My learned friends o])positc, however, have laid a great deal of weight upon a part of the evidence of Mr. George N. Sanders, notwithstanding their disclaimer of any imputation upon the veracity of our Avit- nesses. But his deposition is either to be taken as it is, or not at all. Speaking in relation to one sentence in his deposition, they say he is a gentleman incapable of saying anything incorrect ; ])ut in relation to the next, they say, or intimate, that he has 1)een swearing what is not true. Mr. Devlin denied he Iiad ever said so. On the contrary, he had him under examination on two occasions, and he had never met with a more truthful witness. Mr. Abbott. — Mr. Devlin Avill recollect that lie said, that when Mr. Sanders had his attention called to the fact, that he was saying something about paper P, damaging to the prisoners ; he endeavored to remove the impression by stating that the document he referred to was not paper P, though previously he had evidently been referring to it. Mr. Devlin. — It was you who threw doubt on Mr. Sanders' word, not I. Mr. Abbott. — Then you admit that his testimony is true ? Mr. Devlin. — Yes. Mr. Abbott. — Very well. Mr. Sanders says in his examination, (p. 213) that Mr. Clay told him, a few days before he left, that he would leave such a letter as paper P, which lie (Mr. Sanders) inferred had not been written up to that time. * * * But he says afterwards, upon being asked to look at paper P, and at the date espe- cially, " I say the conversation I had with Mr. Clay had no refer- ence to this paper." If the learned gentlemen opposite admit that Mr. Sanders stated the truth in his deposition, we take it as it is, and thus dispose of any objection arising from it against this paper. But if they say that this (Mr. Sander's) conversation with Mr. Clay did refer to this paper, they virtually charge Mr. Sanders with swearing falsely, which they disclaim most emphatically. But, in 1; , .1 \ i I. M ■m I Hi' il ■\ > : 392 reality, no part of Mr. Sanders' testimony impeaches this paper. He states that Mr. Clay was to " write a letter, assuming all the responsibility of the St. Albans raid." Now, you will perceive this is not a letter at all, nor docs it purport to assume the respon- sibility of the St. Albans raid. It is simply a formal official memo- randum, containing authority to act — not recognition or assumption of an act previously done. It docs not correspond with the de- scription given by Mr. Sanders, of what Mr. Clay intended to write. But Mr. Clay did in fact write such a letter ; and if my learned friends will call at my office, I will show them the letter which Mr. Clay wrote, assuming the responsibility of the St. Albans raid. 3Ir. Devlin. — Why did you not produce and prove it ? Mr. Abbott. — Simply because a letter Avriten in December, assuming the responsibility of this raid, would be of no legal value. If I had produced this writing, I should have been subjected to a more extensive volley of questions than was actually discharged at me by my learned friend, Mr. Devlin ; for he would have been entitled to demand with more reason, and, doid^tless, with a corre- sponding increase of vehemence, " Who gave C. C. Clay, jun., power to ratify in December the raid of October 19th ?" This reminds me that my learned friend is anxicus to know some- thing about Mr. Clay. Now the evidence of record answers all of my friend's questions, that are material to this investigation. It proves that Mr. Clay was Senator for Alabama in the Confederate Senate, and was accredited here by the Confederate Government in the spring of 18G4, as a diplomatic agent ; not an ambassador recognized by our Government, because we do not yet recognize the Confederate States as an independent established sovereignty, and therefore do not receive ambassadors from her ; but a diplo- matic agent, such as the Confederate States and all states have a right to send to any country, and to entrust with such functions as they may deem suitable. iMr. Bethune. — What is the evidence as to his powers ? Ml'. Abbott. — I have the misfortune not to hold a copy of Mr. Clay's commission, but I have in my hand evidence both verbal and Avritten of the de facto possession and exercise by him of the powers and duties of a diplomatic agent in this country ; and I have in writing the order of the Department of War of the Confe- derate States to Lieut. Young, to obey such orders as Mr. Clay might give him, which necessarily implies authority in Mr. Clay to give such instructions to Lieut. Young as he may think proper. I have read the instructions (paper 0, p. 206) given to Young, by which he is directed, in the clearest manner, to report to Mr. Clay in Canada, and to take his instructions from Mr. Clay of Mr. verbal of the and I Confe- ir. Clay ylay to jroper. 'oung, [port to Clay 393 as to what he was to do with his party when he had raised it, and as to the enterprises he was to undertake in the perfornianec of his duty in command of that party ; and lie was directed '' implicitly to obey those instructions." I would like to know, witli respect to the operations of Mr. Youn;,', what further authority to Mr. (.'lay was re(|uired, as between the Confederate (government and >Ir. Younjj;, than is contained in tliis ])aper. I Avould like to know, from any analogy to any law, still more from the direct authority of any law or pre- cedent, in what respect this evidence of authority in Mr. Clay to give instructions to Mr. Young is defective. My learned friends pretend that it is. I ask then, in what respect and for what reason ? The test of the authority of an agent is tlie binding effect of his acts upon his principal. In this case a written paper is issued from the Confederate States War Dej)artment, addressed to Mr. Young as an oiKcer of the Confederate States army, direct- ing him to report to a ))erson, proved, by four witnesses, to be acting in the capacity of diplomatic agent of the Confederate States, and directing him to obey implicitly that agent's orders. The agent gives orders, and they are acted upon ; and there can be no doubt but that the Confederate (lovenunent is responsible for them. Such evidence would be conclusive against the Confe- derates, if our Government turned upon them, and made Mr. Clay's giving orders to Mr. Young in Canada, a subject of comjilaint. Those States could not escape from thei,r liability to give us satis- faction (if those orders were really just cause of comi)laint) by saying that although they had ordered Lieut. Young to go to Mr. Clay to receive instructions from him, and to obey them im))licitly ; yet that they had not ordered Mr. Clay to give him those instruc- tions. But in further reply to the empiiry who IMr. Clay is, we have the evidence of several witnesses. Adjt. Gcnl. Withers (p. 206) says he Avas Senator for Alabama ; l)r. Fallen (p. 209) knows that he was a Commissioner of the Confederate States of America ; Mr. Cleary (pp. 210-11) knows him, and says he was an officer of the Confederate Government , that he was appointed by that Government a Commissioner abroad, — and that that was position in this country. " I am personally aAvare of that fact," says Mr. Cleary. And at p. 212 he adds, " the said Mi;. Clay " was both a civil and military officer. He made his reports to the " State Department, which was the civil department of the State ; *' but he had ample powers both civil and military : but he had no " rank in the army." And Mr. George N. Sanders informs us (p. 213) that Mr. Clay " was then exercising the authority of a Con- federate agent, claiming full ambassadorial powers, as well civil as military." ft m HI f t .■ -i 4itl ii a fe- mi /i^r'" 1 ■ \ < ', I ■ i ■ 304 Witli Hvich information as tliis before him, I think that my learned friend, Mr. Devlin, mi;:lit have spared us the reiteration of liis first (luestion. Or, if he felt it essential to the int(>rest of ' jiis clients, or to the contour of his ])eriods, that he should ask it so often, or ask it all ; that he nii^^ht have answered it also. The other (juestions respectin;:; Mr. ('lay may ho as easily and more shortly answered, lie came down to Montreal at the time of the trial hefore Mr. Coui'sol, to ^^ive his evidi'nce, if necessary, on behalf (»f the prisoners, and he remaini'd in Canada till they were discharged. Anenses of the expedition. With reference to the attack itself, your Honor will recollect that the only ti-ace wo have of the party from the time it was organized in Chicago, and arrangements made to attack St. Albans, is the appearance of Young at Mr. Clay's house at St. Catherines, when he reported himself and party ; aiid on the train from Toronto ; and that of himself and three others of the party at St. Johns, in the beginning of Octol)er. That is the only evidence to support the often repeated assertion that this party of twenty-one were organized in Canada, and proceeded from Canada. Where is the proof that the other seventeen proceeded from Canada ? And if there be no proof of it, — and I assert there is none, — by what right is it that my learned friends reiterate it so persistently V In tiict this is all "we hear of the expedition till we learn from Mr. Bishop and the other St. Albans witnesses, of their having taken possession of the town. As to the attack upon St. Albans, the facts seem to be simply these; The party appears to have met at St. Albans at a })reconcerted time. In the middle of the afternoon they took possession of the town at several points, at which they placed pickets ; they seized upon several of the leading citizens whom they placed under guard in the principal square ; they set fire to the town in several places ; seized upon three of the banks, and pillaged them ; and, while so en- gaged, took from Breck a bundle of notes, which he brought into one of them in his hand. All these acts, from beginning to end, they declared themselves to be doing as Confederate soldiers, in retaliation for outrages committed by Northern soldiers in the Confederate States. S'M A Mr. Jiethiinc. — Did thoy take iway any prisoners ? Mr. AUiotf. — No, they did not. Thoy took possession of the town, pillaged, and, as far as they were uMe, set fire to it. If they could liave done so, they would, douhtloss, have hiinit the whole of it. They did as much niisehic f ns tiiey could, till driven <»ut hy the citizens. My learned friends ait diflicult t<» please. They have favored us with ^lowin;:; denuneiatioiis of the outra^ies eniamittcd by the raiders ; yet they now seem ter se — a kind of act of war of Avhich we have heard a from him and Mr. Johnson. No doubt the last named Avill be pained, yet amused, at the " ludicrous extravagance of the pretence," that in going to a peaceable village in the middle of the day," and " easing " the old ladies of their chairs and tables, their cooking utensils and their bedroom furniture, the persons of Avhom I am about to speak " can be presumed or believed to have acted as a military force — haA'ing lawful authority from a brave and civi- lized people for Avhat they did." Those notions of "warlike achievements and martial glory," which he has formed, Avill receive another sliock, when he learns how the Federals, whom he doubtless believes to be models of modern belligerents, carry on warfare. Unless, indeed, he adopts the doctrine of Counsellor Sowlcs, (page 145), Avho being examined professionally for the prosecution, gives his opinion as a counsellor-at-law, that the aet charged against the prisoners, if done in Georgia by Federal soldiers, under a Federal officer, would not constitute robbery — because, he says, Georgia is a State in rebellion against the United States, and Vermont is not. Indeed, the adoption of this view of the law by the Counsel for the Crown, would not be more remarkable than the mode in which " watching the case for the Crown," is exemplified by their speeches. But I must proceed Avitli the description of what a " raid " is, as practiced by my learned friends' clients. I shall read from No. 42 of the Rebellion Record, a New York publication, of respectable character, which I perceive was frequently referred to for information in New York, on the trial of the crew of the Savannah. The ex- pedition I speak of was commanded by Mr. Montgomery, a Federal officer, who is said to have proceeded up the Altamaha river to the (; a 397 IS never village of Darien, on the 11th June, 18G3, -with a party of negro soldiers " to present his compliments to the rebels of Georgia." No motive is stated to have existed for this raid, nor does any order appear to have been given for it by any officer of rank. Darien -was a town of about two thousand inhabitants ; and as Montgomery approached it in an old East Boston ferry-boat, pro- moted to the rank of a gun-boat, he threw shells into it which drove the inhabitants " frightened and terror-stricken in every direction." Not an armed person appeared to dispute his landing or offer any resistance. " Pickets were sent out to the limits of the toAvn. Orders were then given to search the town, take what could be found of valuo to the vessels, and then fire it. Officers then started off in every direction, with squads of men, to assist. In a very short time every house was broken into, and the work of pillage and selec- tion wns begun. * * * * Soon the men began to come in in twos, threes, and dozens, loaded with every species, and all sorts and quantities of furniture, stores, tvinkots, etc., etc., till one would be tired enumerating. We had sofas, tables, pianos, chairs, mirrors, carpets, beds, bedsteads, carpenters' tools, coopers' tools, books, law books, account books in unlimited supply, china sets, tinware, earthenware. Confederate shin plasters, old letters, papers, etc., etc., etc. A private would come along with a slate, yard stick, and a brace of chickens in one hand, a table on his head, and in the other hand a rope with a cow attached. * * * Droves of sheep and cows were driven in and put aboard. * * * Darien contained from seventy-five to one hundred houses — not counting slave cabins, of which there were several to every house, the number varying evidently according to the wealth of the proprietor. One fine broad street ran along the river, the rest starting out from it. All of them were shaded on both sides, not with young saplings, but good sturdy oaks and mulberries, that told of a town of both age and respectability. It was a beautiful town ; and never did it look both so grand and beauti- ful as in its destruction. As soon as a house was ransacked, the match was applied, and by six o'clock the whole town was in one sheet of flame. * * * The South must be conquered inch by inch ; and what we can't put a force in to hold, ought to be destroyed. If we must burn the South out, so be it. * * * We reached camp next day, Friday, about three p.m. The next morning the plunder was divided, and now it is scattered all over camp, but put to good use the whole of it. Some of the quarters really look princely, with their sofas, divans, pianos, etc." This was a raid ! and what is more, it was a Federal raid ! and what is more still, it was described in detail to the Federal people I i :|^, II i ■ i !. \ & 398 vi'iih pride and exultation, a.s a " bold, rapid, and successful expe- dition." To an impartial eye it certainly does not present many of the features of boldness — nor would it seem to possess those characteristics of " warlike achievements and martial glory " of which my learned friend has spoken, and which according to the tenor of his argument Avould have to be j)rescnt in every hostile act, to save the belligerent from the punishment of a felon. The whole affair seems to have been the idea of an officer in command of a regiment ; and his " programme " is coolly stated to be to carry off all he could, and burn and destroy the remainder. He takes with him a small vessel for the purpose of carrying away the spoil, lie enters a peaceful village from which most of the inha- bitants have fled, and where he met Avith no resistance ; he sacks every house, carries off everything worth having, and burns and utterly destroys every building in it of every kind and description. I hope my learned friends now nndcrstand what a raid is — and how fell the instructions of Mr. Clay to make a raid on St. Albans, authorised the pillage of three banks, and of the complainant, Mr. Breck. If danger and deadly strife be elements of a hostile act, I must be penuit'ed to claim for the attack on St. Albans a more ]ierfectly warlike cliaraeter than that upon Davien possessed. If the test is to be the extent to which wanton destruction and pillage of private property Avero carried, I cheerfully yield the palm to the ".Avarlikc achievement " of the sacking and burning of Darien, and freely admit that ]\Ir. Montgomery acquired thereby more " martial glory" than fell to tlie lot of Mr. Young. The sacking and burning of Darien gives us an excellent practi- cal exemplification of the doctrine of the Federal States as to Avhat constitutes an act of Avar. And it forms the bos*" ] '^ssible com- mentary on the scorn, the indignation, and the honor, Avhich the learned Counsel have been at such pains to express, at the compa- ratively insignificant injuries inflicted by the prisoners upon the toAvn of St, Albans. I say that I can find the record in this book of a thousand times Avorso acts than the St. Albans raid, committed in a thoiisand instances in the South, by Federal troops, since this was began. ])[/-. Devlin. — That is beside the question. Mr. Abbott. — If the character of the raid is beside the question, Avhy has my learned friend nrged Avitli such vehemence as an argu- ment for the extradition of these men, that their acts in the raid on St. Albans Avere atrocities prohibited by the laws of Avar ; un- precedented in modern Avarfare ; and so repugnant to the prin- ciples Avhich regulate the conduct of nations during Avar — that the municipal law, which is usually silent inter arvia, must be aroused to wreak its vengeance upon their perpetrators. If my 399 learned friend's argument was worth anytliiii;i;, mj reply destroys it. If it was worthless and "beside the (lucstion," he should not have used it. Friday, March 24th. lion. Mr. Abbott., resuming his argument before Mr. Justice Smith, said : — In my address of yesterday I endeavored, with as much care and impartiality as I was capable of, to go over the evi- dence bearing upon this case. It seemed to me that upon the evi- dence must chiefly depend the eft'ect of the principles of law, that have been cited as being applicable to it. These citations have been numerous and extensive ; and if they have appeared to con- flict, it is chiefly because one party quote the general rules as estab- lishing his case, omitting the discussion of the exceptions as being unnecessary ; while the '^tlier insists that the exceptions alone apply and has cited them only. To arrive at the real state of the law upon the facts proved, it then'fore appears to me to be neces- sary that the authorities on both sides should be taken together. The general principles of law applicable to circumstances of the kind under consideration, have been set forth l)y my learned friends on this side. The learned gentlemen opposite, however, have endeavored to make out that there were exceptions to those general principles, and that this was one of them. Now it is to the examination of the question whether there are sucli exceptions, and if there bo, whether the circiunstanees of this case fall within them ; and again if they do, to what extent they aftect the abstract rights of belligerents, that I shall chiefly address myself to-day. I think I shall be able to show that in one sense there are excep- tions to the incontestable rules of law as to belligerent rights, as Ave have laid tliem down ; but in another sense, and in that sense in which those rules are to be a]^[)lied to my clients, there are no such exceptions. I admit that there are certain customs of war usually observed among nations in time of war, adopted to soften its asperities, and mitigate its horrors ; but I deny that such customs constitute law binding upon any belligerent, or enforceable by any tribunal. In pursuing the course which I have thus laid down for myself, my views will be based principally, if not entirely, upon the authorities already placed before your Honor. When I left off yesterday, I conceive that I had fully discussed the whole of the facts exhibited by the evidence ; and I submit that those facts may be summed up as establishing that the pri- soner Young, then being an officer, of the Confederate States, actually commissioned for the purpose of harassing the Federal States on their northern frontier, organized a party of twenty Con- federate soldiers within the enemy's lines (namely in Chicago), in m J. 4^ ■, t. *,^::'it- /ill 400 conformity with instructions given to him by his Government ; and that with this party of men, under the sanction of the official of the Confederate Government to whom he was referred for instructions, he made an attack on the town of St. Albans ; that he pillaged it, and set fire to it as far he was able ; and that on being driven out of it, he took refuge in Canada. These, I think, are facts clearly established by the evidence. My learned friends opposite go further, and say it is proved that the raid was made from Canada. I contend it is plain that the particular incursion actually carried out, originated and was planned and organized in Chicago, in the United States ; and that there is no proof tending in any way to show that the attack originated here, or that it proceeded from here. And I say that the only evidence offered on this latter head, is that which establishes that Young himself came to Canada, after be had organized his little party in Chicago and settled upon the point of attack there ; and reported his doings to Mr. Clay ; getting his sanction of them after he had so planned and arranged the enter- prize within the territory of the belligerent ; and also that three of the persons who acompanied him on the raid were traced in a part of Canada, shortly before the attack on St. Albans. This is all that is proved by the evidence adduced, and it does not prove the pretension of the prosecution on this point. I have laid the whole of it fully and fairly before your Honor, exaggerating or extenu- ating nothing ; and as my learned friends have followed me closely, and have failed to point out any particular in which I have omitted any proof favorable to their view, or distorted any of the state- ments of the witnesses ; I think I may assume that my argument has been free from any objections to its fairness and impartiality. Now, I wish to call your Honor's attention to the arguments by which my learned friends opposite endeavor to destroy the case we have thus made out. I take Mr. Carter's objection first ; because it is an objection to the effect of any commission which could be issued by the Confederate States, and therefore, takes a wider range than mere objections to that, with Avhich I contend Young was fortified. He says, in his proposition submitted to your Honor, that " The Queen's Proclamation of May, 1861, is the exercise of a " national right, ' the effect of Avhich at most, is to regard both ^^ parties as entitled to belligerent rights ov ^v'wWaga^ of commerce'; " but these rights must not be confounded with the rights and ^^ privileges resulting from recognition. England, he says, 'has " not recognized the Confederate States, as an independent " sovereignty;' and he argues therefore that all courts and judges " are bound to consider the ' ancient state of things as remaining " unaltered.' " Now, in his fourth and fifth propositions, he presses this proposi- 11 ; and of the ctions, ^ed it, ■en out clearly 5ite go !anada. carried , in the way to mhere. , is that he had po'.nt of ting his le enter- at three iced in a This is ot prove ;hc whole r extenu- ^ closely, omitted he state- LVgument tiality. nents by case we because could be a wider Young Honor, cise of a .rd both ^imerce'; ihts and >rs, ■has [pendent judges iinaining proposi- 401 tion to what he conceives to be its full and logical extent. He says : applying these rules of law to the commission we produce, that our proposition that the Court is bound to take notice of it, and of the evidence relating to it, is untenable, and opposed to the juris- prudence of the English and American Courts ; because, he says, that the adoption of it would be a virtual assumption by the Judge of the power to recognize the existence of the Confede- rate States as an independent nationality. Now, Mr. Carter has made a very obvious mistake, in submitting these propositions as applicable to this case. He has omitted to perceive that there is a difference between the recognition of a State as an independent sovereignty, and the recognition of a State as a belligerent. If the reception of Lieut. Young's commission as evidence, involved the necessity of the absolute recognition of the Confederate States as an independent sovereignty, my learned friend's proposition would be correct. He is correct in stating that England has not recog- nized the independence of the Confederate States ; and not liaving done so, that your Honor cannot so recognize them. I admit that ; but is such a recognition in any respect necessary to enable you to look at this commission as an admissible instrument of evidence ? Is your inability to notice this commission, or to recognize it as having any force, a necessary consequence from the fact that England has not recognized the seceded States as a sovereignty; admitting, as he does, that she has recognized them as a belligerent ? Let us see what the authorities say about that. I shall cite his own, as affording the most conclusive exposure of the fallacy he contends for. But first I shall quote himself, to refute himself. He virtu- ally admits, in his first proposition, tnat the effect of declaring the neutrality of a nation is, to cause both parties to be regarded as entitled to belligerent rights ; now, I would like to know from my learned friend, what he considers to be belligerent rights. I take it, that he must be of opinion that making war is one ; and as war cannot be made without oflficers and soldiers, the right of commis- sioning officers and levying soldiers, must be incident to the right of making war. Now, I submit that if we concede to the Southern States the right of commissioning officers, we must recognise their commissions when they appear before our Courts. To declare that we admit their right to appoint an officer, and then to declare all evidence of that appointment inadmissible, would simply be an illo- gical and ridiculous mockery, of which no nation could be guilty. — What kind of recognition of belligerent rights would it be, to say to the Confederate States : you may make war upon the United States, but you must not have any army or navy, because you can- not appoint officers, commissioned or otherwise, or levy soldiers ? Such a position never could be assumed by any State , and there AA A'- A :;M •V, ■•^-^f*,x It I ■ •ii' , \ : 1 : rV-i' [4 402 really is not a shadow of ground for pretending that Great Britain now occ^ipies it. But in addition to the authority of my learned friend himself, on this subject, I will avail myself of the books he cited, as a means of finally disposing of his proposition. He cited Ilalleck, pp. 75, 70, Avho says : " The recognition of the independ- ence and sovereignty of a revolted province by other foreign states, when that independence is established in fact, is therefore a ques- tion of policy and prudence only, which each state must determine for itself; but this determination must be made by the sovereign legislative or cxecctive power of the state, and not by any subor- dinate authority or the private judgment of individual subjects. And until the independence of the new state is recognized by the government of the country of which it was before a part, o?' by the foreiyn state ivhere its sovereignty is drawn in question^ courts of justice and i^rivate individuals are hound to consider the ancient state of things as remaining unaltered. This is excellent and undisputed law. But look at pages 73 and 74, of the same book, " where General Ilalleck distinctly admits that the rights of belligerents, which neutrals may concede to the parties to a civil Avar, include all rights necessarily incidental to a state of war. This is to be found on the page next but one to the page cited by my learned friend. So that the very book, which Mr. Carter has first cited, establishes the proposition that the state of belligerency implies the possession of all rights neces- sarily inc'dental to war : and if it does, it compels those who recognize the belligerency, also to recognize the only mode in Avhich that character can be pr'^served, and its functions per- formed, namely the creation of armies. And as armies are composed of officers and soldiers, and the belligerent must have the right of appointing officers ; that recognition renders it neces- sary for our Courts to recognize such appointments when made. My learned friend also cited "Wheaton," page 47, whose lan- guage is almost identical with that of Halleck ; the latter being in fact copied almost verbatim from Mr. Wheaton's book. Well, nobody disputes the doctrine there laid down. But is that doctrine apphcable to this case ? Mr. Wheaton's book will itself answer my question. He says at page 40 : "If the foreign state professes neutraUty, it is bound to allow impartially, to both belligerent parties, " the free " exercise of those rights which war gives to public enemies against " each other ; such as the right of blockade, and of capturing " contraband and enemy's property." Mr. Lawrence's note upon this passage, illustrates it by examples drawn from the history of the struggles between England and the present United States ; Spain and her colonies; Turkey and Greece ; and finally from the existing state of things in America. (Mr. Abbott here read from itain ,rncd ^8 he cited pcnd- tates, que8- rminc subor- bjects. by the • by the mrts of ancient 1 73 and J admits Le to tbc ntal to a le to tbe k, wbicb tbat tbc ;3 neces- lose "wbo mode in .ons pcr- mies are lust have it iicces- made. hose lan- . being in [1, nobody ippUcablc question, itrahty, it I" the free against [capturing note upon [history of '. States; from the •ead from 408 Wheaton, p. 43, in notis, the description given of the position of England and France with regard to America.) 3Ir. Carter. — Will you read the previous paragraph ? 3Ir. Abbott. — Certainly (reads it, laying down the rule that in this question " of belligerent rights, as of a more formal acknow- " ledgmcnt of independence, the decision is with the Government " and not with the Courts ;" and referring to a decision at Galves- ton in Texas respecting a capture on behalf of an unrecognized Mexican republic or state,) I admit that the recognition cither of belligerent rights, or of independent sovereignty must be the act of the Government, not of the courts ; but, in this case, the British Government has admitted the belligerent rights of the seceded States. My argument is that the recognition of those States as belligerents gave them a right to all the privileges of belligerency, and, consequently, the right to appoint their own officers. In the case referred to, the Government had not recognised the belliger- ency of the State in question, and did not, consequently, recog- nise its right to capture ; but if the Government had recognised the belligerency of that State, it certainly would not have denied the validity of a capture made on its behalf. It is a fact also which illustrates the eifect of a recognition of belligerency, that England has had communication Avith persons informally representing the Government of the Confederate States, Mr. Carter. — I do not dispute, that recognition is an act of Government. My proposition is that your Honor is restricted by the judicial character you fill, from taking upon yourself to concede that recognition which Government alone can grant. I refer to an authority I did not cite before ; pp. 119 and 120 " Halleck." Smith, J. — You both agree on the principle. It is the Govern- ment alone that can recognize the claim of any nation to independent sovereignty. But the question Mr. Abbott puts is this : — Since the sovereign of England has recognized the belligrent character of the Southern States ; then although the recognition falls short of a recognition of complete independence, yet are not the Courts bound to recognize them to the same extent as the sovereign has recognized them ? Mr. Carter again read from Wheaton, page 42, and observed : As a national matter there is a vast difference between recog- nizing the belligerent character of those States and their separate national character ; and as long as the latter is not recognized by the sovereign, the Court can not recognise it. Judge Smith. — It is perfectly clear that the Sovereign of this country not having recognized them as an independent nation, I cannot do so. Iff u ■■';„; I mmv M' r Us ml. rl'. Jllfr. Carter. — Then you cannot recognize the commission given to the prisoner Young by such a Government. 3Ir. Abbort. — That is a non sequitur. I agree with Mr. Car- ter's proposition that the power of recognition rests solely with the sovereign power of the State, and tha. the independence of the Southern States not having been recognized, your Honor cannot treat them as independent. But I utterly deny the correctness of his conclusion. The Queen's proclamation of May, 1861, is express in its recognition of the belligerency of the Confederate States, and in its injunctions for the observance of a strict neutra- lity in the strife between them and the Federals — and that, I con- tend, is sufficient to render the military commissions of the Confed- erates receivable in evidence here. My learned friend Mr. Carter cites 2 Phillimore, p. 25, to the effect that : " It is a firmly establish- ed doctrine of British, and North American, and indeed cf all juris- prudence, that it belongs exclusively to Governments to recognize new /States ; and that until such recognition, either by the government of the country in whose tribunals a suit is brought, or by the govern- ment to which the new State belonged, courts of justice are bound to consider the ancient state of things as rcrnaining unaltered.^^ No one denies this. But Phillimore makes exactly the same distinction that Wheaton does ; for at page 17, he points out the effect of the observance of neutrality in a struggle between an old and a new State, and states that it has some beneficial effect with respect to the nation which is fighting for independence. For, he says, it allows impartially to both, equal rank and character as belligerents. Mr. Carter. — I say that England has gone the length of acknow- ledging that a civil war exists ; that she has declared her neutra- lity, and, as a consequence, recognized the belligerent capacity and belligerent rights of the combatants. Therefore, I admit the cor- rectness of the proposition he enunciates, but it is the application of it I deny ; and I say, there is a vast distinction between acknow- ledging belligerent rights, and the rights and privileges resulting from the recognition of the sovereignty and independence of a state. For this is not a war waged between two separate nations possessing distinct rights and sovereignty, but a civil war in a country with which we are on terms of peace, and towards which we have treaty stipulations. Mr. Abbott. — If I admit every syllable my learned friend has just uttered to be true, which I might do, how does it affect the question ? What he says, does not in any way even purport to con- trovert my pretension, that the recognition of belligerent rights — "which he admits has occurred — involves as a necessary consequence the recognition of a commission issued by one of the belligerents, as a legal instrument of evidence. To render the distinction he :tion he 405 has just drawn of any value, lie must shew that nothing less than the universal recognition of a State as an independent sovereignty will justify the issue of a commission. In support of my views on this point I will refer to two or three authors, hut will not pcr-^'t myself to dwell upon it at any length. Vattel, at page 424,8pcu. ■ ing of the position of parties in a civil war, says : " A civil war breaks the bands of society and government, or, at " least, suspends their force and effect : it produces in the nation " two independent j)arties, who consider each other as enemies, and " acknowledge no common Judge. 'J'hosc two parties, therefore, " must necessarily be considered as thenceforward constituting, at " least for a time, two separate bodies, two distinct societies. Though " one of the parties may have been to blame in breaking the unity of " the State and resisthig the lawful autliority, they are not the less " divided in fact. Besides who shall judge them ? wlio sliall pro- " nounce on which side the right or the wrong is ? On earth they '' have no common superior. They stand, therefore, in precisely the " same jjredicament as two natio)is, who ni |C'-. ' ■»ll 408 will also assert that tho shooting of a solitary man in the dark by another solitary man, is not an act of war per se. In that case, unless it can be shown by a resort to argument, that it is a " con- structive" act of war, the sentinel who shoots an individual approach- in;^ his post must be regarded as a murderer. Where in the books do they find this distinction between an act of warji;er se and a construc- tive act of war ? What jurist treats of it V I think among the piles of volumes that have been displayed before your Honor, my learned friends might have foimd some stray sentence that would have sus- tained them. But we have heard nothing of the kind. In fact, I am under the impression that my learned friends are the firf> and only jurisconsults who have ever drawn that distinction. Mr. Johnston attempts to dispose of the tiuostion by arguing as he always does, in choice and plausible language, which gives a force to his argument that it does not intrinsically possess — that no man can mean to say that the casing of poor old Mr. Brock of two or three hundred dollars is an act of war per sc. " What," he asks, " is " the natural conseciucnce of robbing ^Ir. Brock ? Is it that tho " national power of the United States is prostrated, or hi the " remotest manner affected by it? The natural consoijuence is " that Mr. Breck loses his money ; but it requires a great deal of " imagination to conceive, and a good deal of ingenuity to cxj)lain, " how that fact tended to exhaust the national resources, or attack " in any manner the national existence." lie goes on in the same strain through half a column of the paper in which his speech appears, and by holding up the particular act of i)illaging Breck as being a petty and inconsiderable act, incapable of affecting tlie result of the war, he endeavors to show that it could not be what he calls WHY per se. And my learned friend, in support of this kind of argument, makes this characteristic statement. He says : " As " far as external appearances are concerned, to conclude only from " what was described to us by the eye witnesses of this procccd- " ing ; that it was a warlike operation may, I think, be fairly said to be impossible. If common sense were not (][uito a sufficient guide, by itself, to conduct us to this conclusion, the authorities already cited by my learned friend Mr. Bethune are upon this point conclusive. Vattel, Martin, Manning, Poison, Woolsey, Kent, Wheaton, and Ilallcck, concurring, as they have been shown to do, upon such a point as this, may safely be deemed of " sufficient authority to guide us to the decision of what is, and " what is not considered upon general principles to be an act of " war." Well, now, as it happens, no one of those authors has said, that the pillage and sack of a town is not an act of war. No one of them has drawn the distinction between an act of war per 86 and a constructive act of war. Not one of the citations quoted ;( u m- 400 r J ^ar per moted by Mr. Bothunc, on whoao labor and learnin<» Mr. Johnston pro- fcssea to rely, directly or indirectly lays down any distinction between an act of war per »e and a constructive act of war ; nor do any of them treat at all upon '' such a point," as my learned friend is urginj^, when he pours out their names so Hucntly. War does not consist merely nor even mainly of battles between great armies, although the modern tendency is to confine it to them as much as possible. On ihe contrary, it is composed of innumerable minor acts of hostility, in which, unhappily, injuries to individuals and to private property are of momentary occurrence. My learned friend's remarks, as aj)plied to Breck, might, therefore, with etpial propriety and C(iual justice, bo used with resjicct to incidents in this and in every other war, which occur hourly — which are uccur- ing while I speak. When a cottage in the {Siienanloah valley was burned, was " the national power " of the Confederates " pros- trated " by so doing ? When one of the ] tillage rs of Daricn carried off a table on his head and a pair of chickens in his hand, did those acts " exhaust the national resources, or attack in any manner the national existence?" !Such puerilities as these appear smart, but they arc not argument, and do not even resemble argu- ment. They are the more excusable in my learned friend, how- ever, as they constitute quite as large an element in the Burley judgment as they do in his address ; with this difference that he has greatly the advantage in the mode in which he has placed them before your Honor. What the authors, whose names Mr. Johnson runs over so glibly, do contain, however, is a clear and conclusive statement of what the rights of nations at war witli each other really are. And they c'ertainly do lay down, as an excc))tion to the general rule already sufliciently established by our authorities, that all subjects of each belligerent arc made enemies by war, and may kill each other and despoil each other of their proj^erty ; that the war shall not be waged with any more violence or cruelty than is necessary to the end which the nations at war intend to gain. That is the rule which nations in modern warfare generally volun- tarily observe. Bat this exceptional rule is not only itself subject to a great many exceptions, but it is one not enforcible in any way, except by reprisals or retaliation. Moreover, the tenor of every citation made from the other side, as to the mode in which war ought to be conducted, is, that both par- ties are entitled to carry on war, in such manner as they may think proper, without responsibility to any one ; and especially it is declared in most of them, that no neutral or other power can judge or decide whether one mode or another '« proper or improper ; or can punish in any manner or way, any breacu of what they may I \ if* ; '^ 410 consider to be the rules uccordin*^ to Avliicli war ouglit to be con- ducted. In every author, I say, there is to be found the assertion that there is no absolute nor enforcible rule in such matters ; but that tlie will of the nation carrying on the war, alone can decide in the last resort. Judge Smith. — It is a matter of conscience. Mr. Abbott. — A mere matter of conscience. The difference in this respect between what are called the laws of war and municipal law, is similar to the distinction made by Pothier, between the /or interieiire and the for e.vterienre. Judge Smith.— In order to bring that point to a practical test, — if it be asserted that the laws of war, or the laws of nations have been violated, what tribvmal can decide whether they have been or not ? Mr. Abbott. — That is the point. Mr. Carter. — I do not contend that when once an act is estab- lished to be an act of war, the Court can take into consideration its nature, or character, or deal with the authors of it. But that on the contrary, when it is admitted to be an act of Avar, it is beyond the control of any municipal court. I contend^ however, that the circumstances surrounding this case show it was no act of war at all. Judge Smith. — We are to determine, in the first instance, whether the act complained of is an act of Avar or not. If it be, Avhat tribu- nal can try its propriety '{ Mr. Carter. — I say that this offence is not only a breach of civil and municipal law, but a breach of international law. It involves both. In the first place you can not regard it as an act of war, as the prisoners previously lived here, on neutral territory. Judge Smith. — You must not confound propositions. If the act is done Avith authority — in obedience to orders given on behalf of a State recognized by our Government, so far as carrying on the Avar is concerned, and yet is alleged to be ip violation of the rules of Avar ; Avho is to try that question ? To say that it is to be tried in any neutral country is absurd. Mr. Carter. — What I contend for is, that there is no authority proved. Judge Smith. — That is again another point. That is the point I want to bring you to. Mr. Carter. — I say that if the Confederate States were an in- dependent nation, they could not give authority to those parties to act as they did at St. Albans. Judge Smith. — The real difficulty of the case is this, has there been shoAvn to have been any competent authority under which these men acted ? Mr. Devlin. — Was there a commission ? or has the act been avowed ? 411 )e con- ;scrtion i-s; but icide in :ence in unicipal the /or 1 test, — Dns have ive been is estab- }ration its t that on is beyond , that the Avar at all . e,wbetlier ,hat tiibu- Lcli of civil t involves of war, as If the act bclialf of tng on the the rules to be tried authority the point [ere an in- parties to , has there :idcr which act been Judge Smith. — If, as these men allei^c, they acted in obedience to orders issued by competent authority, and only did what, in the execution of their duty as soldiers, they were bound by their alle- giance to do, then the simple (jucstion is, have they proved such orders ? If they have not, then all other considerations fall to the ground, and they stand here as ordinary criminals. Mr. Bethune commenced to explain Avhat he meant by an act of war per se. Judge Smith. — Neutrals cannot investigate the character of an act of war. When nations aro at war they act as they please towards each other ; and a neutral has no power to say this is an act of war, or is no act of war. The assumption of the contrary doctrine would lead us into a labyrinth of difficulties. Mr. Abbott. — This discussion has brought the (question raised respecting acts of war, to an intelligible point ; and the view of it just stated by your Honor is the one I have been all along con- tending for. With regard to the impression conveyed to me by what your Honor has just said, as to proof of express authority being requisite to enable you to regard the prisoners' acts as hostile acts, I beg respectfully to submit that 1 think the authorities would sustain a wider view of the functions of a commissioned officer. It is not of much importance to my case which should be adopted ; for I consider the express authority fully proved. But I do not wish your Honor to think that I admit that an officer, with soldiers under his command, may not sack and burn an enemy's town at any point and at any time while war continues. I contend that if he had never had any instructions from Mr. Clay, the production of Mr. Young's commission as an officer, and the proof that he had a party of twenty soldiers acting under his orders ; the act charged being that of attacking, and, as far as they were able, sacking and burning a town in Vermont ; would have been sufficient to defeat this demand. I say that the fact of himself being an officer, and his command being soldiers of one of the belligerents, acting on their behalf, against the other belligerent, and in their territory, is sufficient, Avithout any instructions whatever from his Government, entirely to deprive the municipal law of Vermont of all power over him, and entirely to divest the act he did of the character my learned friends on the other side wish to attach to it. It could never be contended under such circumstances that the acts they committed were mere violations of the municipal law of the State of Vermont. But I do not intend to argue this point further, as I am quite satisfied our position, as regards it, is fully established. To return, then, to the authorities of my learned friends, and the principles they attempt to draw from them, I wish once for all to If ;, »■■'( r:^;i ^i I m 412 say, that I contend that the statement ly the learned authors cited, that certain hostile acts .arc unlawful, conveys nothing more than that they are not in accordance with the course of action which civilized nations usually follow in war. As I have repeatedly re- marked, none of those authorities class acts, such as the present, amon,2; what are termed unlawful acts ; but if they did, the fact of their being unlawful, in the sense in which they use the word, would not bring them within the jurisdiction of the ordinary municipal tribunals. And another line of argument and authority they have followed, is quite as easily answered. Citing from numerous books in support of their view, they insist that it is unlawful for persons, though belonging to a belligerent nation,to commit depredations within their enemy's lines in disguise ; and that such marauders are liable to be treated with extreme severity. All this is true enough. Even belligerents, if they are acting within the enemy's lines in disguise, are liaLic to be shot or hanged ; that is, they are amenable to the laws of war, and are liable to be tried by court martial as guerillas, spies, and the like, and executed just as Beall was. Or, if the offended beUigerent chooses, he may shoot or hang them without trial. But none of those authorities show that a guerilla or spy is to be tried as an offender against the ordinary municipal law, or that he is amenable to it in any way. Beall's c-'^.so is an instance of the construction put upon these authorities !)y the United States themselves. lie was charged with several acts, which, under ordinary circumstances, would have sustained indictments before the regular courts, but there was no pretence of his being justiciable by those courts. lie was tried by a mili- tary court for these very acts, as violations of the laws of war, and he was found guilty accordingly. And when my learned friends cite the Burley case, they should remember that the chief offence charged against Captain Beall, as a violation of the laws of war, for which lie was tried by a tribunal organized under the laws of war, was the very act which Upper Canada Judges held to have had nothing to do with war. Either Beall was illegally condemned and executed, therefore, or Burley was illegally extradited. I shall content myself at present with saying on this point that I am pre- pared to admit that the presence of Young in the enemy's country, with a party of soldiers in civilians' dress, would have rendered him and his party liable by the laws of war, if captured, to be treated as spies or guerillas, and hanged or shot on the s[)ot ; and I submit that a verification of the authorities cited on this point will show that they carry my learned friends no farther. But that they in no instance establish that persons so liable to punishment, are amenable to the Courts, and consequently could be extradited, under the Ashburton treaty. I should except, however, the letter of Dr. 413 Lieber to Judge Advocate Bolles, writ n on the 5th of February- last for the Beall case and for this cue, and actually read to the Court by the Judge Advocate, as authority in the Beall case (p. 85) ; and now read by my learned friends as an authority here. It is a new feature in the argument of a case to hear a letter from the Plaintiff's Counsel, giving his opinion on a case before a Court, read to that Court as an authoritative exposition of the law of that case. And it is more extraordinary still to hear a letter from an obscure person in the United States, upon a ques- tion of public and international law arising between that Govern- ment and the Government of Great Britain, quoted as solving that question ; notwithstanding that the writer, in endeavoring to estab- hsh his position, characterizes the doctrine approved of in an offi- cial declaration of Earl Russell as the organ of the ]>ritish Govern- ment, as shewing such "insolence, absurdity, and reckless disregard of honor " as to " fairly stagger " a jurist or a student of his- tory." My learned friend, Mr. Johnson, found a Pickwickian in- terpretation for the term " insolence," but he wisely abstained from seeking to translate " absurdity and reckless disregard of honor." His position, while he argued that "insolent" meant " unusual," was sufficiently pitiable, without being prolonged during the performance of a similar operation upon Mr. Licber's other pohte expressions, I shall take the liberty, therefore, of paying no further attention to this, the sohtary favorable authority which my learned friends have been able to find, or their clients to manu- facture, for the purposes of this case. t What your Honor has said on the proposition of my learned friends as to acts of war, relieves me to some extent from the task I had imposed upon myself, of following seriatim the authorities cited on that subject by the other side. But I will glance at two or three of them. Mr. DevUn cited, chiefly, from Vattel ; and Mr. Bethune, also, made a very extensive use of liis work. I think therefore that I shall merely refer your Honor to the citations fur- nished in support of our 7th, 8th, 9th, and 10th propositions ; and then content myself with taking the (flotations made by my learned friends from Vattel, and showing how far my idea, with regard to them, is borne out. My learned friend commenced by a citation from Vattel at page 351, and Mr. Bethune by another from page 347. These are the very first quotations they made, and it is remarkable how they completely deprive my learned friends' argu- ments of all force in law, leaving to it, however, its full value as an exposition of what war ought to be. At page 347 , after laying down the rule that in a lawful war where the end is lawful, the belligerent has a right to employ all the means which are necessary for its attainment, Mr. Vattel continues : V if u i( i4 414 " The lawfulness of the end does not give us a real right to any- thing further than barely the means necessary for attainment of this end. Whatever we do beyond that, is reprobated by the law of nature, is faulty and condemuable at the tribunal of con- science.'''' And in the very next paragraph, assuming as an axiom that it belongs to each nation to judge of what her own particular situation authorises her to do," he proceeds to show that a sovereign who unnecessarily adopts extreme measures and carries on the war with unnecessary severity, " is not innocent before God and his own conscience." These few lines embody the principle, the development of which is the subject of the 8th chapter of Mr. Vattel's third book. It is the " tribunal of conscience " to which a (jovernment is amenable, when it carries on a war in a manner inconsistent with the humane rules which arc usually observed in modern times. It is before " God and his own conscience " that he will be held culpable, not before any human Court or Judge. But there arc numerous circumstances mentioned by Mr. Vattel in the very pages my learnc^l friends have cited, where all the humane rules they approve of < > highly, may be violated, without incurring even the reprobation oi liie conscience, — such are those things which arc done by way of retaliation and reprisal. — And these were the pro- fessed objects of the St. Albans raid, and constitute the most ob- vious of those which can be supposed to have actuated the Confeder- ate Government in devising it. Then, if Mr. Vattel's doctrine cited by my learned friends be correct, it is only the Confederate Gov- ernment to whom " it belongs to judge what her own particular- situation requires her to do ;" and if she judges wrong and per- petrates acts which are not justified by the circumstances, it is oidy " to God and to their own consciences " that her rulers arc responsible. The remainder of the same chapter has been cited at different points, where various kinds of injuries to an enemy are declared to be unlawful. I have already shown the effect of this kind of un- lawfulness, but it may be useful to pursue the argument a little further. Mr. Devlin reads to us from page 351, that women, children, and feeble old men do not come under the denomination of enemies. And that soldiers should not harm those classes, nor peasants ond others, who do not carry arms. But he says in sec- tion 148 : " But all those enemies thus subdued or disarmed, whom the " principles of humanity oblige him to spare, — all those persons be- longing to the opposite party (even the women and children), he may lawfully seize and make prisoners, * * * * at present, indeed * * *, women and children are suffered to enjoy perfect security, u (( u u 41; " and allowed permission to withdraw whenever they please. But -' this mo deration, this puliteneii><,thou(/h nndofidhtedJy commendable, " is not in itself ahsolutdt/ ohliijatory ; and it' a ;^eneral thinks fit to " supersede it, he cannot be justly accused of violating:; the laws of " war. lie is at liberty to adopt such measures, in this respect, as *' he thinks m(^st conducive to the success of his affairs." So that, if the enumeration of non bellii^crents, as persons whom it is unlawful in war to injure, had any bearinif on this case, which it has not ; the context, in the very ])a<^e from which the rule is drawn, but which my learned friend omitted to read, points out that this unlawfulness is not absolute; it is subject to no Judge here on earth, and is pvuiishable l)y no tribunal. Jjut let us look a little closer at this argument of mv learned friends, and aj)ply it to this case. Atlmiting for a moment that the St. Albans attack falls within the description that fact bring the prisoners of ])risoners wlio have surren- J5ut what is the consequence after his surrender ? Is the of unlawful acts of war, would within the treaty ? The killing dered we arc told is unlawful, of putting a prisoner to death person who kills him guilty of murder? Can he be demanded and extradited, if he is found in a friendly country with whom his enemy has such treaty as ours? Take the case of (ilen. Morgan, the gallant Confederate cavalry leader, who was shot dead in a garden by a party of F 'eral soldiers while unarmed, and after he had surrendered himscL ; was stripped of his clothing and his corpse flung into the nearest ditch. According to Vattel, and to the hundreds of other writers to whom my learned friends have referred on this very point, these were unlawful acts justifiable on no grounds whatever ; and Heaven forbid that I should dispute such a proposition. But would the murderous ruffian who killed him be liable to be tried by any municipal tribunal for that crime ? Would the sordid outcasts who tore the garments from the yet palpi- tating corpse, be held guilty before the Courts, of an ordinary theft ? To hold that they would be, would be in one sense as shocking to the opinions of the civilized world, as to approve of the infamous outrages which I quote in illustration of my argument. Mr. Devlin again cites pages 357 and 369 of Vattel ; but for what purpose ? To prove that an enemy may not lawfully be treacher- ously assassinated or poisoned ! We don't require books to be read to us to prove such propositions. They cannot be disputed ; but they are quite as irrelevant as they are true. History almost within our own time gives us instances of the rule ; for we know that the assassination of Napoleon Bo- naparte was proposed to England ; and we know how the pro- posal was received. Surely we might have been spared these .,t ' 1 |:1^ m ri .1 416 quotations, as well as that which follows them at page 362. A moral exhortation is very good in its place ; but it is not by the views of philanthropists as to what the Avorld ought to be, that we are to be governed in administering the law. Mr. Devlin read us half of page 86'2, but if he had also read the first two lines of it, I think he would have found it unnecessary to proceed. Mr. Vattel prefaces the portion Mr. Devlin read, by saying, " I cannot con- ", elude this subject of what we have aright to do against the person " of the enemy, without speaking a few words concerning the dis- " positions we oufilit to preneroe towards him." This really covers the whole ground. Our authorities will show your Honor what belligerents have a right to do. My learned friends attempt to limit that right to what Mr. Vattel thinks they ought to do. I imagine there can be little doubt which rule your Honor must follow. In the next cha])tcr of ]Mr. A'attel's great work, which treats of the rights of war with regard to things belonging to the enemy, from which Mr. Bcthune has largely cited, the same distinction is to be found pervading the whole discussion. The right to seize upon and appropriate to om-selves the ])roperty of our enemy is stated in direct terms (pp. 864, 'd^S^.^ But the duty of exercising this right with moderation and humanity is strongly urged upon belligerents ; and upon these statements of duty my learned friends build up the fallacious proposision, that because they think the pil- lage of St. Albans does not S(juare with Mr. Vattel's view of pro- priety, therefore it is unlawful ; and, therefore, also, the prisoaers are taken out of the immunity which the laws of war afford them : and must be extradited. Bat in reality the pillage of an enemy is nowhere declared to be unlawful ; but, on tlie contrary, is referred to in every | age of chapter 9 as au undoubted right. And ]\Ir. Vattel mentions, also, in what way pillage may be fully justified — namely, as retaliation and reprisals ; and he states it to be entirely in the discretion of the authorities of each belligerent to decide as to the nature and extent of such retaliatory measures. I proposed to place before your Hcmor evidence, proving that the mode in which this war has been carried on by the Federals was such as to afford the fullest justification of the retaliatory raid now under consider- ation, but your Honor rules it out, and I tnink rightly. For I hold tliat if the act be done with the authority, express or implied, of the Confederate States, its propriety is a question beyond your juris- diction. But ample evidence of it is nevertheless not wanting in those records of daily events which constitute the history of this war. The extract I read yesterday from the " Rebellion Record," shows how the United States wage war. But there has been some- thing more then this. The Federal Legislature has passed an act, f/Hi- 417 5. A )y the lat we 3ad us )f it, I Vattel »t con- person he dis- covers »r what mpt to do. I r must reats of cnerav, ictioii is to seize ncmy is :ercising ;cd upon i friends the pil- of pro- risGiiers d them : nemy is referred nd Mr. tified — entirely ecidc as reposed n which ;o afford lonsider- T I hold , of the r juris- iting in of this lecord," In some- an act^ (( by which the entire property of the sul>jects of the Confederate States has been confiscated. I shall read from the speech of Mr. Crittenden a few sentcncss, which admirably characterise this most extraordinary piece of legislation : " You propose the confiscation of all the property of rebels, their " aiders and a1)ettors. What is the number of people who w(nild be '•' included in the proscription? whom would that include ? All who " have paid taxes, all who have made contributions to support the " rebellion ? all who have taken up arms, or all who have given " aid and comfort to those who have taken up arms in support of " the rebellion ? llow many would that leave ? The exceptions will " he but very few, if you consider who are the principals, and who '• the aiders and abettors of this rebellion. Here are ten States, " and by your law of confiscation you proscribe man, woman, and " child. The whole history of mankind does not furnish anything " like it. Such a proscri})tion was never before issued by any " human authority. No plague, no pestilence, which ever de- scended upon mankind has ever wrought such mischief as this " would." So that so far, therefore, from denying the right of one belligerent to seize the property of another, the United States, as Mr. Crittenden shows, have actually confiscated tlie whole of the private property of every man, woman, and child in the Confederate States. Their will was worthily executed by Montgomery in his incursion into Darien ; and the devastation, the pillage, the destruction which have made a desert of the Shenandoah valley, would not be over- l)alanced by thousands of such raids as that upon St. Albans. If, therefore, it were necessary to show that the attack on St. Albans was a fair measure of retaliation on the part of the Confederate Government, we could do so without ditficulty. But I again re- spectfully submit that this question is not before your Honor. If the Confederate States had a right to give orders for such an ex- pedition at all, it is not for us, nor for your Honor, to say whether or no this was a proper occasion on which to exercise that right. If I were disposed to pursue the discussion of this point, I think I could follow my learned friends through the books they have cited, and show that in every instance the distinction I have been contending for is enunciated by the authors they cite. However strongly those writers may advocate the carrying on of war in a humane manner, or may contend that it ought to be waged in this way or in that, they all agree that it is for the belligerent nations themselves to decide in what way they will actually carry on hosti- lities ; and if either party does that which the laws of war do not recognise as lawful, the only remedy is reprisal and retaliation. Unless, indeed, the persons actually engaged in what is deemed an BB '\ r f-?-^ ■i^' .ii • ■''^ |Bfm<|g^ mm 418 unlawful expedition are actually captured by their enemy, in which ease, they will he liable to be treated in any manner that enemy may think proper, and the injury they may have done can be avenged by retaliatory acts, in the discretion of the injured party. It is only in these modes that the laws of war can be enforced, or f leir violation punished. Thus, if the prisoners had been captured in the United States it would have been for that Government to say how they should be dealt with. They probably might have been treated as guerillas, perhaps as sj»ies ; tried by drum-head Court-martial, or shot or hanged on the spot, without any form of trial. Before leaving this subject, I wish to refer to the point suggested by Mr. Johnston, as to the distinction between lawful and unlawful war. Mr. Johnston, in his argument, insists that this act was not lawful war ; he cites from Judge Talmadge and Judge Cowen to sustain his pretension ; and he refers to Vattel on the same point. I find it difficult to seize his exact meaning in this — and think he has misapprehended the jurists he quotes. Their discus- sion was upon what constituted a lawful state of war ; not as to what Avas a lawful act of hostility between belligerents. And he applies the instances Judge Talmadge gives of incursions which do not constitute a lawful state of war, to the present case, to prove that it was not a lawful act of hostility. Judge Talmadge does not discuss the question whether or no an unauthorized incursion by a small party of men of one nation into the territory of a neighboring nation is in itself lawful war, there being no war between the two nations ; because it is beyond discussion ; it is not lawful war. But he examines what constitutes a state of lawful war, or perfect war, and holds, as Mr. Johnston properly states, that acts of a cer- tain character are required to constitute lawful war. But the Avay in which my learned friend reads and applies these authorities can only be appreciated by quoting from his speech. He says ; " on '' the question whether the circumstances proved in this case clothe '• the transaction with the character of lawful war, it is to be observed '■• that Judge Cowen and Judge Talmadge, his critic, both agree. '' ' To warrant the destruction of property, or the taking of life,' says " Judge Cowen, ' on the ground of public war, it must be what is called lawful war by the law of nations.' ' All will agree,' says Judge Talmadge in his review, ' that the war which affords impu- '' nity to those engaged in it, must be a lawful war.' Vattel 13, 3, " c. 4, sec. 67, says : ' A war lawful and in form is carefully to be distinguished from an unlawful war entered on without any form, or rather from those incursions which are committed either without lawful authority, or apparent cause, as likewise without formalities, and only for havoc and pillage.' There is no mistaking the mean- (( u ki i( 410 iH let war? cer- lie "vvay lCS can ; " on clothe iserved agree. ;,' says kvliat is I,' says impu- ll3,3, to be form, without ilities, Imean- " ing of this hmguage. If the prisoners seek irrcsponsihillty here, " they must show at least that they had Uiwful autliority for what '' they did. The act of war they invoke to shield them must be a " lawful act ])y tlie law of nations." I think tliere is no mistaking the meaning of this lan- guage. But it certainly does not mean what he infers from it ; he evidently applies tliese citations to the act of tliose men alone, and not to the nature of the war now being carried on, to -which that act was incident. Now, I say it is i)luin that Judges Talmadge and Cowcn were discussing the d(jctrine of innnunity from responsibility to municipal law, which they held applied only to acts committed in a lawful war ; and the passages Mr. Johnson cites, refer to the position of two nations witli regard to each other. "When Judge Talmadge says that impunity is only afforded to those " engaged in lawful war," he obviously uses the phrase as descriptive of the position of the nation to which such persons belong. And when Yattcl speaks of incursions committed without either lawful authority or ai)parent cause, he refers to incursions by individuals or parties of men, made while the nation to which tliey belong is at peace with the one which they invade, and made Avithout the authority of their own sovereign. I find these " incursions " italicized in the re])ort ; and therefore infer that my learned friend cites this passage as ap])ropriate to the St. Albans case. Now, a single glance at the text would have shown that those incursions only are s])oken of, which take place when there is no war. The (piestion Judge Talmadge is discussing is this, — Is there a state of lawful war or not ? and he quotes from Vattel to show the distinction between a war lav/ful and in form, and mere incursions without commissions and without authority. It is perfectly plain that he does not mean incursions incident to a lawful war, but incursions independent of any war. The instances he gives of the Grandes CompagnicH of France, and of Filibusters, sufficiently establish his meaning. Now, what does this authority establish ? Simply that there may be a state of lawful Avar between two countries ; or that thci'e maybe incursions into a country in time of peace, by men without commissions or authority, which does not constitute lawful Avar. But neither Talmadge, A^attel, nor Cowen, says that a hostile incursion, by a party from one country, into the territory of another, in time of Ayar, is of itself an unlaAvful Avar or an unlaAvful act of hostility. My learned friend's authority, therefore, is totally inapplicable here, because a state of lawful war does exist ; and his pretensions that incursions incident to such a state, arc unlaAvful, cannot be sustained for a moment. Such a doctrine is not to be found in books, is not consonant Avith reason, and is inconsistent with every principle to be found laid 420 down on the subject, »'ither in tlic u^'uion of Taliuad;j;o, or in any other anthority. As to this (juestion of hiwful war, tli' re are just two or three more autliorities to wliieh I will refer, as cstahli.shin;^ tlie })()sition I contend for. In Yattel, pa^e 391, in the note it is said : " As nations arc independent of each other, and aeknowlege no *' superior, there is, unfortunately, no sovereign j)ower anion_:^ *' nations to uphold or enforce the international law ; no tribunal *' to which the oppressed can api)eal, as of right, against the *' oppressor ; and, conse(jUcntly, if either nation refuse to give " effect to the established princi}iles of international law, the only " redress is by resorting to arms, and enforcing the performance " of the national obligations, and this is the principle of just war." In additif n, i will cite a few words from llautefeullle, jiago 101 : At page l''»l, he says : " Sur mer comme sur terre, le bellige- " rant a le droit absolu de nuirc a son ennemi j)ar tons les moyens " directs qui sont en son pouvoir, et seulement par les moyens *' directs ; il n'y a done aucunc distinction a fairc a cet dgard " cntre le droit maritime ct le droit terrestre." At page 102 : " Chez aucunc nation, dans aucun temjis, il n'a existe unc loi, nn " usage fpii, sur terre, exemptc do la confiscation les proprietes privees de rcnnemi. * * * Quant aux proprietes mobilieres, clles nc sont pas plus rcspcctdes li terre (|ue sur mer. Sans parler des f)illages autorises par les usages de toutes les nations, dans toutes les guerres terrestres, memo dans cclle de 18.34, qui fut dirigee avec tant de moderation ct d'humanite, les proprietes privdes de rer.ncmi fureut prises et detruites par les troupes "■ ennemies." I think that is a tolerably clear exposition from one of the most modern continental writers on the subject of the rights of parties in war. The conclusion I draw from these authorities is this, — that the tei.dency of modern rules of warfare is to restrict the effects of war to soldiers in the field ; but that this docs not affect the abstract rights of the belligerents, who are the sole judges of the means they are entitled to employ in carrying on the war. But judging from the care with which my learned friends next point was elaborated, and the vehemence w'th which it was urged, they rely greatly upon it for the success of their application. — They say that the prisoners were guilty of a breach of neutiality ; and the consequence they drav/ from it is a curious one. They accuse these men of having infringed our law. They also accuse them of having committed in the United States, an offence which the authorities there consider an act of robbery. The prisoners say they are belligerents, — that they acted under a commission ; and more than that, — had direct authority for the act. The learned J ' m in U') lis, — )t the aftbct of the ; next irged, on. — alitv ; They LGCUSe ■which soners Ission ; lamed 421 gentlemen opposite rei)ly, — siipi)Oslng all th'n to be true, you have committed a crime against the law of Canada and (ireat Britain ; therefore you must bo extral>o(f. — Not in that form ; but that is the sense of your argument. I feel convinced that every one who hears me will say that it must assume that form, otherwise it is of no value at all. Because a breach of neutrality was committed by those men, they have lost the character of ])elligcreiits ; they have invalidated the authority given them by the Confederate States ; they have forfeited all the rights of Confederate subjects and soldiers. This is the position which Counsel on the other side assume. Smith, J. — The proposition put by Mr. Bethune and the other Counsel on that side is this : that the prisoners, although belligerents in their own country, yet, having sought an asylum in Canada, have thereby lost that character. That, being here, they planned and executed an expedition into the United States from this country ; and returned afterwards to Canada. And the conclusion drawn from this state of facts is simply this, that they cannot do any bel- ligerent act at all. That any attempt to do so, is so far unlawful, that it cannot 1 -i protected by the lav/ regulating belligerent rights. JL\ Bethioie. — That is our position precisely. 3Ir. Abbott. — That is one of their positions. The Counsel opposed to us say that by seeking an asylum and residing in Canada, these pri- soners lost their belligerent quality ; that as a matter of fact they ceased to be belligerents, and could not carry out any belligerent enterprise against the Northern States, of whom they were the enemies by birth and by their commissions. But there is also another proposition which they submitted to the Court. There can be no possibility of escajjc from it, for a great portion of their authorities are intended to apply to it ; namely, that because the prisoners violated the neutrality of this Province, and thus commit- ted an unlawful act, — and my learned friends opposite cited a great man;- authorities to prove that an incursion from a neutral to a belligerent country was an unlawful act, — the extradition of the accused, if demanded, should be granted. Mr. Johnson. — Not for this act, but for another act. All we contend for is this — that you are Retting up here an answer to otherwise proved felony, and that you do not prove it to be a law- ful answer. Mr. Abbott. — Not ./or this act, but because thi^ act accompanied or preceded the act for which ex'..radition is demanded. — That is i' 1 '■ R1,- m- jit": *t ^ 422 just what I insist the other side are contondiii;^ ii»r. They ar;iue that because these men made this raid, as they say, from Canada, they committed an nnhiwt'ul act, inasnmch as they hroke our neu- trality ; that because they conunitted an unhiwrul act y land, and f)iracy at sea were the same ; while Mr. Bethunc ([uoted another to prove that different rules governed operations by land and by sea. And I could turn to both of them in my notes, if it were worth while. But in reality a reference to either Vattel or Ilalleck, which appear to be the books most frequently cited on the other side, will show that the prin- ciples applica)>le to these two kinds of warfare are exactly the same ; althougli in the case of warfare by land, the abstract right of plunder and pillage is restricted in practice, while at sea it prevails in full force. And tho quotation just made from Hautefeuille is precisely to the point. In fact, as the other learned gentleman put it, piracy and robbery are convertible terms ; the one being the same offence by land that the other is by sea. Mr. Johnson admits that there is no case in which it has been held that the captor in such instances as I have spoken of, and as his authorities refer to, was held punishable as a pirate by the municipal tribunals of the other belligerent. There is not only no case of this kind, but the possibility of such a thing has never been hinted at in any book. On the contrary, in the very books cited by the other side, it is laid down authoritatively, that the injured belligerent has nothing whatever to do with the matter ; that the belligerent of whom the ship was unlawfully captured, has no right to say one word on the subject. It is the neutral alone who deals with it, and he does so to vindicate his own dignity and sovereignty. It is he who says, you shall not come within my borders, and use them as a vantage ground from which to make war on my neighbor. And if you do, I will not acknowledge the validity of your capture, and will force you to restore it. The man who makes the cai)ture is not liable to be punished by the authorities to whom the jiroperty belongs, nor can their complaint against him be listened to in the courts of the neu- tral. It is not at their suit that the capture may be annulled by reason of its illegal origin ; for that illegality does not concern them. The Court here adjourned for an hour, and at 2 o'clock INIr. Abbott resumed : I proposed, when we adjourned, to examine how far the authori- ties cited by the Counsel for the Crown and for the prosecution, sustain the position they have taken, with regard to the effect of the alleged breach of neutrality by the prisoners, upon tlieir acts at St. Albans. The authorities quoted in support of their view certainly are to the effect, that an incursion from a neutral State into the territory of another is unlawful, but but they go no further. They cited Mr. Wildman, who says in distinct terms that captures within neutral territory, or made by expeditions proceeding from )' ."■■■Kr^l ^t ■ ■ 420 iientral territoiy, are ille^^al, Avliicli is the precise doctrine my learned friends rely on. " But," " he adds, " not with respect to the enemy.'''' The citations from Azuni, Burlamaqui, Wheaton, Phillinwre, and Kent, arc all to the same effect. This, then, is undoubtedly the correct doctrine, and it cannot bo disputed. To set the matter at rest, I admit, in the words of these citations, that " hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral state" (Wheaton 713) ; tliat " captiu'cs made by the belli\hen the prize is duly libelled before a competent ^' Court. If any complaint is to be made on the part of the cap- " tared, it must be by his government to the neutral government, " for a fraudulent, or unworthy, or unnecessary submission to a " violation of its territory ; and such submission will necessarily " provoke retaliation." The whole of the discussi()n in the three or fo\ir preceding pages of Kent, which my learned friends opposite cited, has reference to the effect of the capture of a vessel within the limits of the neu- tral jurisdiction, in so far as regards the transmission of the title to the captured ship, or effects ; with regard to the neutral — not with respect to the belligerent. The belligerent is not stated to have any right to find fault with the proceedings of his enemy, or to demand, that the capture should be declared illegal. But .simply, that the capture withhi the neutral territory, is illegal quoad the neutral power, and that the latter may vindicate its sovereignty by refusing to acknowledge the validity of the title claimed to have been conferred by that capture ; and may order the restitution of the property to the belligerent from whom it had been taken. The learned Counsel opposite quoted also copiously from Ilalleck. But the passages he cites are merely repetitions a ae doctrines already cited from " Wheaton " and " Kent," ad the very words of those authors. I must say that I fail t' • - .eive the advantage he proposes to gain from them — for in every case they state the consequence of such illegal violation of neutral territory, and that consetpience never bears any semblance to the one he seeks to draw from this. For instance at page 52;3, General Ilalleck speaks of the diff'erence between the asylum which ships may obtain in neutral ports, and that which troops are entitled to. And this distinction was read to us with great unction. But in what way does it aid my learned friend's view ? It is not there stated, that when refuge is sought within the borders of the neutral, by belligerent troops, those troops are to be arrested and handed back to their enemies. But it is laid down that the neutral is to insist upon their being disarmeense to this country too, to maintain our neutrality inviolate. And this incursion and the capture of the Ph'do Parsons have been made the occasion for doing so. We have taken the most energetic pre- ventive measures in our power ; we have i)assed extraordinary laws, giving to the Government extraordinary powers, in aid of our other efforts, and moreover we have under our laws provisions under which those who connnit such acts can he punished. Not by extra- diting them, but by submitting an nidietment against them to the Grand Jury now sitting, as my friends op])Ositc should have done, if they thought them guilty of a breach of our neutrality ; in order to their punishment here ; not by leaving our sovereignty and our authority to be vindicated by our neighbours. 3Ir. Carte?'. — The law officers of the crown do not reipure to be told what their duty is in this matter. We never pretended any- thing so absurd as that parties could be extradited for a mere breach of neutrality ; but for committing tAvo offences, a breach of our neutrality and another offence. 3Ir. Abbott. — I do not pretend to dictate to my learned friend "what his duty is, but I find that in the books it is laid down as a propo- sition of law, as a constitutional maxim, as a doctrine comporting with the dignity of a sovereign State, that if a person be found within its limits charged with tAvo species of crimes, — one com- mitted within, and the other beyond its borders ; he must first be dealt with for the offence committed within its own jurisdiction, before being handed over to a foreign State to be punished for the crime committed there. I tell them that such is the law of this Empire. And I say, that if they argued in England that these men were deprived of their right of asylum, and should be extradited because they committed a breach of our neutrality ; or as the learned crown officer puts his most extraordinary proposition — because they " committed two offences, a breach of our neutrality and another," they would be told — if you pretend they committed a breach of neutrality they must be committed for trial for that, before we can hear a demand from a foreign power for extradition for any other offence. And that is British law, and it is in accord- ance with British spirit, and British feeling. That is the law, ■whatever this government of Canada may think on the subject. Mr. Devlin. — That has nothing to do with the case. Mr. Abbott. — That is exactly my opinion. No such principles or sentiments have had anything to do with the conduct of this case. But, returning to the point under discussion, I shall refer to an authority of some value. I cite 2nd Ortolan, 299 and following pages where he says : • ;|. m. m ;■'' ''w:m ' . «3 430 " L'illegalite des actes (rhostilitds exerces dans les eaux terri- " toriales d'une puissance neutre, cntrame, comine consecjuence '' directe, Tillof^alitCi des prises t'aites en dedans des limites de ces " eaux." And after citing the passages from Wheaton already referred to, expressing the same doctrine, he adds : — " Nous adhe- " rons completement a cette doctrine et a cette jurisprudence pra- " tique. » * *" Here, of course, the ride is asserted which mj learned friends opposite have contended for with such vehemence, namely, that the violation of neutral territory is illegal. But what is the conse- ([uence? I shall read this passage as exhibiting it: '• Puisque la nullitd des prises ainsi faites n'est rien d'absolu, "• qu'elle est subordonnee aux reclamations de I'Etat neutre, "• le fait est remis a Tappreciation de cet Etat. C'est a lui a " juger s'il y a eu, ou s'il n'y a pas eu, veritablement atteinte '* ])ort6e a sa souverainete ; s'il doit a sa propre dignity et aux " obligations d'impartialite que lui impose sa quality de neutre, de " reclamer contre cette atteinte et de demander que les consd- " quences en soient annulees ou repardes, ou bien s'il pent garder " le silence et n'elever aucune reclamation." And at page 229, In speaking of the exercise by the neutral of its right to return illegally captured property if found within its jurisdiction, he says: " II ne faut pas croire qu'en cela I'Etat neutre se rende juge de "• la validite ou de la nuUit(3 de la prise, au point de la querelle " des belligerants, et des lois qu'ils doivent observer dans leur '' guerre maritime. Cette question est entierement hors de son " ressort. Mais si des actes d'hostilite ont eu lieu illegitimement '' dans les eaux qui sont soumises a sa souverainete, il est en son " pouvoir de faire cesser les eftets de ces actes ; en usant de ce "• pouvoir, il ne fait cpie maintenir son droit, que preter main-forte "• a sa propre cause." M. Hautefeuille promulgates a similar doctrine, Vol. I, at pages 334, 335.— But I think it is possible for us to find examples nearer home, which will shew howfar the violation of neutral tenitorv attects the act of one belligerent against the other. We can find recent precedents both in America and in England, which settle the question in the sense in which I understand it. We are all familiar with the fate of the " Florida " Now, she was captured while actually under orders as to her cruise against the Federals, from Com. Barron, the diplo- matic agent of the Confederate States, at Brest. I hold in ray hand the letter, written and dated in Brest, in which he gives minute and detailed directions to Lieutenant (!)ommander Chas. S. Morris, of the Confederate States Navy ; he then being also in Brest, with his ship ; as to the latitudes he is to cruise in, the period. 431 during which he is to remain in one place or another, his conduct towards neutrals ; and winds up by ordering him, in case of doubt, to recollect that his chief duty is to do all the injury he can to the enemies of h'S country. These are instructions issued to the commander of a Confed- erate States steamer, then in a neutral port ; by a Confederate States agent, then resident in a neutral port. Tiiis steamer was afterwards illegally captured by the United States war steamer " Wachusett," in the neutral port of Bahia. And these instruc- tions from Com, Barron were found on board of her. A remon- strance was immediately addressed to the United States Govern- ment by the Brazilian Government, complaining of the gross violation of her neutrality committed by making this capture; whereupon a species of apology was made by the United States Government. The " Florida," in the meantime, had been sunk and could not be restored, but her officers and crew were released, and sent, I think, to England. Now, supposing it to have been a violation of neutrality for Com. Barron to issue orders for a cruise against the commerce of the United States, while he was resident in France ; which occupies the same position that England does toward the belligerents — how is it we never heard a word of complaint against Mr. Barron from the Govern- ment of the United States, nor any demand upon the French Gov- ernment that he should be sent out of France ? lie has never been interfered with for his conduct in this respect, and still resides in that country. The position of Mr. Barron in France, and of Mr. Clay in Canada, appear to have been exactly similar, and what they did was exactly the same thing. And if there was a violation of neutrality in the one case, there was in the other. But what is more to the purpose of this argument ; how is it that Capt. Morris was treated as a belligerent 'i My learned friends would say, his expedition was authorized in neutral territory, it proceeded from neutral territory, (the " Florida," in fact, never saw any other), and it was thereby deprived of all character of lawful hostility. If the St. Albans raiders lost the character of belligerents, because they, or some of them, at one time' or other passed through, or came from Canada ; how is it that the officers and crew of the Confede- rate cruiser were not treated as pirates, because they started from France and received their orders there ? If my learned friend's pretensions are correct, the Florida was a pirate ; and her officers and crew could have been tried at Bahia and hanged, as hostes hmnani generis, without rendering it necessary that the United States should incur dishonor, and submit to humi- liation, for the privilege of destroying her. If the principle con- tended for by the opposite Counsel be correct — that the reception ife; i- y> y',\'i 432 witliin a neutral territory, of orders for a hostile expedition, takes from that expedition the character of lawful hostility, and from the parties en;j;a;^cd in it that of belli;^erents ; then Morris and his crew were as mucli ])irates as were Youn;^ and his party robbers. Atid we may cclusion, which I find given with great force and clearness in Sir Goorgo Comewall Lewis' little treatise, ^^r. Jolmson coiTcctly stated that the pr<)[)riety of agreements f(>r extraditi(m, rests on the presump- tion of an impartial trial in either country. Sir G. C. Lewis uses this theory as a reason why extrsiditiou should never be exteiided to political offenders, lie says : " If all (Jovernments were perfectly C(|uitable and dispassionate, " the principle might safely be applied to political offenders ; but " in the prosecution of political offences, tlio Govenmient may be " considered as an interested party, and therefore another (Jovem- " ment is indisposed to give up persons charged by it with crimes " of this description." And he pouits out that in cases of " civil war," of " revolu- tion," &c., extradition is refused by any State " whicii does not fear the disi»leasuro of the Foreign Government int 'rested in the (|uestion." And he ([uotcs with approbation Lord Palnierston's declaration that a Governnicnt conceding it, would *' be deservedly and universally stigmatized as degraded and dishonored." While referring to this book I miist notice an extrav rdinar^' isc which my learned friend Mr. Johnson has made of it, and 1 am glad he is here while I speak of it. He quotes it at page 52, in support of iiis pretension that a Judge should not fully investigate the charge before granting extradition ; and he finds the au'iioi to agree so thoroughly with him, that he quotes a large part .)f the paragraph : " What then," he asks, " is the duty of the magis- trate ?" I give his own answer entire. " Sir Cornwall Lewis (he says) puts it thus clearly and ex];li- citly: ' In order to render a system of extradition effectufl, the amount of proof, and the formalities rei[uired, should bo as small as is consistent with the ])revention of alnise. The essence of the sys- tem is, that confidence is reposed in the foreign government and in its administration of criminal law. The assurance of tliat govern- ment ought to be the chief giuirantec against abuse. If, therefore, it claims any fugitive through the accredited di;^^matic channels, and gives a reasonable proof that tliere has bee proper investi- gation by the officers of police, and the functionaries conducting tho preliminary stages of judicature, and that this investigation had led to the conclusion that the person in (piestion i^. guilty of the offence charged against him, it is desirable tha^ t' e extradition shouhl take place, upon proof of identity of the ])arty, and without any full in- vestigation, such as a magistrate would make for the commitment of a prisoner in this country.' " And again he says : " The recognition of the criminal law of a foreign state, and the confidence in its regular and just administra- tion, which is implied in a system of extradition thus carried into ^ ' ■ i 438 l.,|. hpl'^ effect, is paralleled by the esta)»li.sheints id to istify ony ; 1 for 1') ard- encc re is •a kind of universal publicity and notoriety driven to the fact tln'ougli- out the United States, which has its value. We know that in the first official notice of the attack, which is to be found in the celebrated proclamation of General Dix, they were spoken of as " rebels," — as "rebel marauders:" and orders were jiiven to shoot them down wherever found. The placard issued by the St. Albans banks desi;^nates them in a similar manner. Every newspaper in the Union, and every Federal organ here, made tlieir nationality one of the grounds of complaint against them. Mr. Sumner, in lus place in the Senate, recognized the political character of the cxpcditioi\, insisting that its real purpose was to embroil England with the Federal States ; and the chief law officer of the Crown for Upper Canada, while so far forgetting himself as to state in his place in the House his opinion on this matter, although it was then under investigation before your Honor ; attributed the greatest blame to the persons who, with political views, had laid the plot which the prisoners had carried out. The universal clamor in the States against this country, for the alleged breach of neutrality, rested entirely upon the political character of the incursion ; for if it had not that character, it was no violation of neutrality — it was a common robbery. Ordinary robbers do not rise to the dignity of violators of neutral rights. And it will even be found, that in the discussion of the application of the prisoners for permissi(m to send to Richmond for evidence. His Excellency the President of the United States, himself charac- terized them as rebels. Assuming it to be true, then — as the whole press of the United States, her generals, her senators, even her highest and most august executive officer declare it to be with one voice — that these men are rebels, who, on the 19th of October last, were engaged in an act of rebellion against the State to which they owed allegiance ; 1 respectfully submit that your Honor must hold that to rebels seeking refuge here from the consequences of rebel- lion, the Extradition Treaty does not apply. But my learned friend Mr. Johnson, fearing, perhaps with justice, that it may be found at least doubtful that any case has been made out against tlie prisoners, on the charge of having been guilty of robbery within the meaning of the Treaty ; reproaches them Avith the inconsetpicnt character of the defence they set up, in hopes, probably, of persuading them that they should submit to be hanged, rather than to be saved l)y erroneous ratiocination. He says, " The position of these men is absurd and illogical in the ex- treme : they say they have an exc:.dlent defence ; are able to jus- tify this raid by the authority of their ( rovernment ; that their act was a belligerent one, and not liable to the municipal law of any country, yet they do not wish to go to the United States and 440 M'.'-'' 1- ;'« be tried !" And the other Counsel have touched, more or les3, upon the same theme, extollmg the justice of the United States Courts, and assuring your Honor of the perfect impartiality with which the prisoners would be tried. Now, I would like to know what kind of trial these men could really expect in the Federal States. I admit that the Courts in the United States have long been eminent alike for their purity and impartiality, for the learning and ability of their Judges, and for the practical sense and vigor of their ad- ministration of justice. They probably still deserve the same high character and position as to all matters unaffected by political con- siderations ; but I must be pardoned if in those respects, I am led by report to fear that their ermine is not without stain. But with- out casting upon them any imputation of any kind, it is probable that they cannot fairly try the defence set up by the prisoners. In other words, could the prisoners' defence be recognized as good in law before the Federal Courts, supposing it to be fully proved ? Mr. Carter has furnished us with the means of answering this ([uestion. The authorities he cited to show that wo could not recognize Lieut. Young's commission, tell us, that it belongs alone to the executive Government of a country to decide whether or no a State shall be recognized as a belligerent, or as a sovereign State. Well, the executive Government of the United States have not recognized the Southern States, either as a l)elligerent or sovereign State ; and consequently the Federal Courts cannot recognize their commis- sions, or consider the acts of their soldiers as belligerent acts. My learned friend, Mr. Carter, will not deny the force of this argument ; for as he contends that your Honor cannot look at this commis- sion, though England has recognized the belligerent character of the Southern States ; he must join me in this argument and say, a fortiori, the Federal Courts cannot look at this commission, because the Federal Government has not so recognized the South. This is one of the instances in which the " plain," " incontrovertible," and " obvious " propositions of my learned friends are recip- rocally rather injurious ; and are likely to share the fate of other elaborate but fragile productions, when brought in rude contact with each other ! It can, in fact, be established that a plea of belligerency, and of justification by instructions from the Confede- rate Government, would not be rec' "ved as a lawful defence before any tribunal in the United States ; and that proof of it would bo utterly unavailing. If such a defence were set up to any of the charges which may be made to arise out of the attack on St. Albans, a Judge in the United States would hold it insufficient in law, and would so charge the jury. Mr. Devlin. — How do you know that ? STli ' rtAW i'*. kf •*«««»* RV,:» >«*-.■ 441 Well, a ami Mr. Ahhoit. — By the report in my hand of the ruling of Judge Nelson of New York, in a similar case. On the trial for piracy of the officers and crew of the schooner Savannah, — a privateer cruis- ing under a letter of F'.ri-;;ue from President Davis, — the same defence was set up as tiat under Avhich these prisoners claim to justify their acts, and upon which alone they must rely to save them from conviction and execution as robbers. In charjiinf:; the jury, as to the validity of that defence. Judge Nelson says : " We have said that, in a state of war between two nations, the " commission to private armed vessels from either of the l)ellige- " rents, affords a defence, according to the law of nations, in the " Courts of the enemy, against a charge of robbery or piracy on the high seas, of which they might be guilty in the absence of such authority ; and \mder this principle it has been insisted, by the learned Counsel for the prisoners, that tiic commission of the Confederate States, by its President, Davis, to the master and " crew of diQ Savannah, which has been given in evidence, affords " such defence. In support of this position, it is claimed that the " Confederate States have thrown off the power and authority of the general Government ; have erected a new and independent Government in its place, and have maintained it against the whole military and naval power of the former ; that it is a (jlovernment, at least de facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. * * * JJut the Court do not deem it pcrtmenf or viaterial, to enter into this wide field of in([uiiy. This branch of the defence nivolves coiisi- derations that do not hdong to t/te Courts of this countri/. It " involves the determination of great public, political (piestions, "• which belong to departments of our Government that have charge " of our foreign relations — the legislative and executive depart- " ments ; and, when decided by them, the Court follows the deci- " sion ; and, vntil these departments have recor/nized the new " Government, the Courts of the nation cannot. Until this recogni- " tion of the new (Jovernment, the Courts are obliged to regard " the ancient state of things as remaining unchanged. * * * And " if this is the rule of the Federal Courts, in the case of a revolt " and erection of a new Government, as it respects foreign nations, " much more is the rule applicable when the (luestion arises in re- " spect to a revolt and the erection of ;ht to overlook, the chauifes which war has produced in the States with which we made that Treaty, and in our relations with that State, " War," says Dr. Phillimore, " effects a change in the mutiial relations of all " States ; more immediately and directly in the relations of the " belligerents and their allies ; but mediately and indirectly in the " relations of States which take no part in the contest." Ami what enormous and radical changes have thus been efi'ected since the passage of the Ashburton Treaty ! When that Treaty was passed, we and they were in a state of perfect peace. No prospect was farther from that great, prosi)erous, and happy country, than the hatred, the bloodshed, the military tyranny, the ruin and the desolation, that have spread themselves over its fairest portions. I i ^1 J •It ' in :' : hi- Vs. ' "ii. 444 Peace then presented lier most smiling aspect, and no cloud fore- shadowed her departure. Now, a war rages throughout the length and breadth of the land — a gigantic and sanguinary struggle, in which brother is arrayed against brother, and father against son. And it is a strife exhibituig war in its most repulsive features ; war characterized by the most insatiable rapacity — the most unbounded devastation — the most lavish pouring out of trea- sure and of blood, that the earth has witnessed for ages. War is always a frightful calamity, civil war peculiarly so ; but history gives no account of any war in which such bitter hatred, such intense hostility, have been developed. And not only men who have risked and taken life, whose passions are inflamed, and whose thirst of blood is awakened — but those who usually soften the asperities, even of ordinary life, now join in the general cry for confiscation and destruction. Reverend divines, young and refined females, vie with each other in the fiercest and most demoniacal demands for ravage and extermination. Now the Treaty was made to promote the transmission for trial from one part of this continent to another, of persons who had committed crimes of the darker class, respecting the char- acter of which North and South agreed with ourselves ; crimes which Vermont and Georgia alike prohibited, and which it was impossible alike for them, and for any other civilized State or people, to approve of, or even to tolerate. There was^no inten- tion on the part of the United States, when the Treaty was passed, to stipulate for the extradition for trial as criminals in Vermont, of persons who were regarded in Geoi'gia as daring and devoted patriots ; and for acts which Georgians held to be praiseworthy, if not heroic. The Northern and Southern States wore alike parties to that treaty through their general Government ; they agreed to reci- procal extradition for the same offences ; — and the offences that so formed the subject matter of their and our agreement, were offences which tlieyand Ave united in regarding with abhorrc.ice, and as de- serving of extraordinary exertions for their pimishment, in the interest of our respective communities. Now, what is the position of these men, and the light in wliich their acts arc regarded by the parties to that treaty ? The Northern States demand them as robbers. They press this demand with unparalleled vehemence ; and so violent and unmeasured are they in their wrath, that their Legislature, their press, and even their pulpits, resound with the opprobrious epithets which arc heaped upon the prisoners. The Southern States, on the other hand, deliberately authorized and directed the acts thus denounced. They regard those who parti- cipated in them as gallant and devoted men, who risked their lives for their country. Their highest executive officers join in hurrying 445 Olid forc- ;he !en<^th struggle, ■r against repulsive city — the t of trea- War is t histoiy red, such men who lied, and lly soften al cry for id refined 3moniacal ission for •sons who the char- ; crimes h it was !d State no inten- s passed, Vermont, devoted leworthy, :e parties d to rcci- s that so ( offences id as dc- , in the position d by the them as nnence ; lat their ivith the s. The zed and 10 parti- eir lives lurrying off the papers and documents which are to aid in their defence. No pains, no labor, no risk, no money, are spared in contributing to their aid and comfort, in the critical position in which they now stand. In one word, one section of the nation with which we made the Ashburton Treaty denounces them as robbers, while the other extols them as patriots. Twenty millions of men under an organiijed Government, demand them as felons ; but ten mil- lions, under another organized government, existing de facto, claim them as meritorious soldiers. And it was with these thirty millions of men, then constituting but one community, that we made our Treaty. Surely if there be all these internal differences of opinion between the parties contracting with us, it is right that we should carefully consider what we are al^out to do. It is no longer the felon sinning against the law of nature, and against society in general ; resi)ecting the enormity of whose crime no one doubts ; whom we are asked to deliver over for trial. It is the soldier of one of these sections, the enemy of the other ; respecting whose criminality there is as wide a difference and as fierce a dis- pute as exists on any other question debated between these warring parties : this is the man whom we are called to deliver over to one portion of the nation, against the will of the other, under a treaty we made with both when united ! These seem to me to be subjects for your Honor's grave consid- eration. They are suggestive of much more that might be said, and much more forcibly said, upon the anomalous state of things in which your Honor is now called upon to act. IJut the con- siderations which arise out of them, personal to the prisoners, are among the most startling. These men are demanded for trial. For trial by whom, and how V Is it for such a trial as it would be presumed an ordinary criminal would have in ordinary times — when justice is administered in the United States by Judges second to none in learning and impartiality ; — by juries composed of educated and independent men ; and when the rules by which they are guided, are the humane and just [)rinciples upon which their and our criminal laws are alike based ? Your Honor knows, every one knows, that no such trial awaits these ])risoners. It is before Judges like Judge Nelson ; who must declare their defence inadmissible in law ; who must decide that the sovereign State of which they acknowledge themselves the subjects, is not entitled to their allegiance ; that the President who exercises the civil i)Ower of that State, and the general who commands its armies, are felons like themselves ; that the commission under which their officers, from the highest to the lowest have fought, and have won the ad- miration of the Avorld, are mere unauthorised licenses to rob and plunder — which can serve no purpose but to prove more con- 446 f Y ; I 'A , I '! \ Sip \ cliisively, their liability to a death on the gallows : it is before Jiulges who rule thus, tiiat their trial must be had. And before what country will they seek their deliverance ? It is from amongst the men whose daily literature is the New York Herald — whose sabbath instruction is from the lips of the Rev. Henry Ward Beecher — whose evening relaxations are the lectures of Miss Anna Dickinson, that the jury which tries them is to be selected ; — those who daily, hourly, read and hear with approbation, their greatest, best and bravest, denounced in the foulest and most opprobrious terms — are to judge of their actions ; — tho.se who echo the fervent aspirations of the apostles and messengers of Divine mercy and Divine justice here on earth, for the destruction of these men and their fellows here, and for their damnation hereafter, are to be the arbiters of their fate ; — those Avho listen to and applaud a fragile girl, while she out-ages lier sex, her age, and humanity itself, by frantic exhortations to wholesale slaughter and universal devastation ; will fill the roll, from which will be taken the twelve men on whose breath will hang the lives of these prisoners. — And the defence which they will be expected to investigate, to weigh, and on which tliey will have to render their verdict, will actually be the assertion by the pri- soners of what such a Court and jury are bound by the law, and constrained by their education, their associations, even their relig- ious teaching, to look upon as a sure passport to a deserved death ; as the very head and front of their offending. Is it to a tribunal thus composed that these men are to be en- trusted ? Is it from such Judges and such juries that these men are to receive a fair, calm and impartial trial ? Is it before them that every circumstance is to receive a full, unbiassed, and dispas- sionate consideration ; as it would do before your Honor presiding over a Court of this country : or as it would have done before Judge Nelson, before this unhappy strife commenced ? I implore your Honor well and maturely to weigh these things. I cannot and Avill not believe it possible that such a cruel injustice will be done to ttese unfortunate men — as to permit of their delivery to their enemies, with the certainty of an ignominious and degrading death. I feel that my advocacy of their cause has been insufficient, though I have devoted to it my best energies ; but I know that my defi- ciencies will be supplied by your Honor's full appreciation of the whole case. And in that confidence I leave it in your hands, cer- tain that your Honor's decision will be such, as will be dictated hj justice, tempered with mercy. 1 1 J J ^?t .i;. ifllfel aiifc ;-. lg^ wm.: « AW(V< irf *.*t.ft.>i- ^ • 447 men them ispas- :siding Judge your ; and done their eath. 1 Wednesday, 20th March, 180o. tS'mith, J. — In this case, which is an appUcation on behalf of the American Government for tlie extradition of Bennett II. Young and others, I am now about to pronounce my judgment ; and in doing so will first briefly state the facts, as they ap])ear to be proved in evidence before me. In presenting them gener- ally, without entering at this moment into particulars, or into those special points in the evidence, which have relation to the particular objections that have been raised ; I would state that on the 10th of October last, Bennett II. Young and his asso- ciates, being in the town of St. Albans, State of Vermont, rose upon the people ; took possession of the banks ; pillaged them ; set fire or attempted to set fire to several buildings ; took and held a number of the citizens as prisoners, during the occujiation of the town ; seized upon horses for themselves ; and were, finally, fired upon and driven out of the town by the people ; exchanging shots with them, to an extent which does not clearly appear by the evi- dence — after having been apparently in some degree in posses- sion of the town for about half an hour. One man was shot in the street, but under what circumstances does not appear. On this occasion, a man named Brcck came into the bank, upon his own business, and was seized upon, threatened with violence, and thereby was obliged to surrender the money he had in his pos- session. This is the act charged as robbery for which extradi- tion is demanded. The applicants say, that their case rests on municipal laAv ; they allege that Young and his associates have committed, according to the law of the State of Vermont, the crime of robbery ; that this offence was committed within their jurisdic- tion, and is provided for by the Treaty ; and that all that is required for the extradition of the accused is, to show reasonable proof that the act was one of robbery, which, they contend, they have done. In general terms, then, these are the grounds on which the applicants claim from the Government of this country, the sur- render of these parties for trial. The minor details of the facts, as proved, having reference to particular points in the case, will be touched on when those particular f)oints are discussed. Now, on the other hand, the prisoners state, that the act of plundering the banks was not robbery ; that it was devoid of those elements, which in law constitute that offence ; that the animus furandi was wanting ; and that the act charged was a mere incident of the attack on the town of St. Albans : that on the 10th October last, Bennett H. Young was an officer in the army of the so-called Confederate States, holding the rank of first Lieutenant, under an appointment made by Mr. Davis, of the 16th June last, as signified to Mr. Young by Mr. Seddon, the Secretary \l f '1 '■ 'i J. "i :: ft f ■i it I ^:;| 448 which remove it fr ?, "" ■■" ''eUife'erents Id't ' "'" '""- that the nJunc e of , '^"^'"^"^1^ and orders of ou, '' ""^^^^^- presented 'by^°,^e«mSloI°:f '/I "".°''^' »'°°J e-vactW „ i, ,•- that 'twould fall u„de"tho ?,„'"•' '"^""'"'^ fw the nZoon 11^ „«#W«!K WA'UMtkt^'UMu ^>U.!l>l«<«*^Mk .- that army, actin" Si. /Jbans, they s such officer and hy tlieir orders ; , as a measure of :lio war had been rhat, in fact, tlie hy their Govern- ;5'ory of cases pro- Jxtradited for it, izinn; the offence promised. Now, a general way, , whicli arise on >n the one liand, ch tiic municipal le act as one uf f the prisoners, because though tion of this jnu-- r circumstances law; and that nal law, and by faid was under- ir (government : that raid ; and iction. To this istrate who cx- ^ver to try such icy take issue olvcd in their vision of the actly as it is prosecution, for the fticts contradicted >ut contrary appellants, I I are really belligerent, ider the au- or no the act nd although ate it, so as 449 to ascertain whether or no tlie offence committed falls within the pro- visions of the Treaty, before I commit these men for extradition. Notwithstanding the pretension, therefore, that I liave no authority, as committing magistrate, to receive evidence on these points ; and that they are (questions entirely for the consideration of a jury of the country where the offence was committed, I have admitted evi- dence not, technically speaking, for the defence ; because there is no such thing as a trial before an examining magistrate ; but evi- dence as a coroner might have admitted it, who must receive what- ever is pointed out as being calculated to have a bearing on the enquiry in which he is engaged. On the first point, therefore, which presents itself, namely, Avhether on an application for extra- dition under the statute in that behalf, a judge can receive evidence tending fully to develop the facts respecting the offence charged, whether offered on the one side or the other, I entertain no doubt, and I consider that the 'affirmative is fully sustained by authority. The case of the Gerity, decided by the Chief Justice and a full bench of Judges in England, has been brought forward to shew that the contrary view is tlie correct one. It has been stated that Chief Justice Cockburn declared, that testimony tending to remove the imputation of crime from the prisoners, was for the jury alone. I do not view his dictum in that light ; on the contrary, I think his language demonstrates, beyond t!ie shadow of a doubt, that his opinion was the ether way. What he really did hold was, that where there were mere presumptions of a fact, but no positive evidence of that fact, it was the duty of the Judge to commit the parties for trial ; and to leave the value of those presumptions to be estimated by a jury. This is really the doctrine declared in the judgment of the Chief Justice, and concurred in by his associates. But is it to be inferred froui this, that if proof had been offered of the fact, which then rested only on a presump- tion — and a very feeble one — that such proof would have been referred to a jury ? I think the reverse is the correct inference from the language of the Chief Justice. The whole of the judges inferentially admit that if those men had produced a coramission from Jefferson Davis, they would have acknowledged it as sufficient to establish their belligerent character. Can it be stated that anything appears in that case to show, that if Ternan and his associates had presented a commission to the Judges, they would have refused to receive it, and to give it its full effect, while they admitted its sufficiency as a justification ? There is no such opinion to be drawn from the report ; nor, in fact, could such an opinion be held by this Bench. In fact, it is clear that they acknowledge, as regards those men, that the production of a commission would have justified their act under DD 4r)0 the law of nations, and that thereby they wouKl liavc been deprivor^ of all jurisdiction over them. The urgument of Mr. James, w.i t' was concurred in hy the Chief Justice was, that the fact that perso)* acted on behalf of one of the bellif^erents, was recognized by the law of nations as a justification, and the possession of a commis- sion is indicated as a circumstance in the presence of which they could never order the prisoners to be extradited. They were finally discharged on another point, though held liable to be com- mitted upon this one ; but that did not affect the position all the Judges took upon the (juestion now under consideration ; and it is impossible to deny the logical correctness of their views. How absurd it would be to say, that if the commission existed and were acted upon on the occasion complained of, there would be no crime under the law of nations, and therefore no authority whatever to commit ; and at the same time to affirm that under our own law the commission could not be looked at at all. A proposition of this kind, if attempted to be urged before that eminent tribunal, would never in my humble judgment have received their sanction, for it would involve a total disregard of the law of nations ; and would permit of the violation of the implied restriction of the Treaty stipu- lations to certain crimes, by allowing it to operate in all cases which could colorably be brought within its provisions. And to refer such a point to a jury, would be in effect to hold that the Courts of the party demanding the extradition, would be the only tribunal competent to decide whether the proof offered in support of that demand was sufficient or not. Sir George Cornewell Lewis says, at p. 55 : " The assumption upon which a Treaty of extradi- tion rests is, that a civilized system of criminal law is executed with fairness, and that the cases claimed for surrender are those of offenders really suspected of the crimes with which they are charged. If a dishonest and colourable use were made of such a Treaty ; if, for example, a political refugee were charged with one of the enumerated offences, for the purpose of bringing him within the power of his government, and if when he had been delivered up he was punished for a political crime, it is clear that a system of ' extradition could not be maintained with a government which ' so perverted the treaty.' Now, who is to determine whether the demand is founded on the pretence here set forth, is it the magis- trate before whom the examination takes place, or is it to be decid- ed when the person is extradited by the government itself which asked for the extradition ? ' I think this requires no answer. I fully agree with the remark of Mr. Justice Crompton in the Gerity case. He says: " It is said that we must trust to the discretion of " the other State, that it will not demand extradition in cases where " it is unreasonable to do so. But that is very dangerous doctrine,. . •kUt^i.yai.t.Hini^U^. 4rA ill deprivo(^ mc8, w.ii. I' ;hat person zed hy the a conmiis- which they They were I to he com- ition all the 1 ; and it is ews. How id and were be no crime whatever to )ur own law ition of this lunal, would iction, for it ; and would Veaty stipu- in all cases ns. And to old that the [be the only in support lewell Lewis of extradi- ecuted with e those of they are of such a cd with one him within n delivered at a system imcnt which whether the the magis- to be decid- tself which answer. I the Gerity iiscretion of cases where us doctrine,. le " to which I cannot subscribe ; and I think it is far more wise to " construe the act, which is peremptory in its terms, in such a " way, if wo can, as to exclude cases in which the demand would be " unreasonable." (Law Reporter, p. All.) Chief Justice Cockburn said — "As to the other (|uestion, whether supposing piracy ^Mr*? gentium to be within this act, there was suffi- cient />rt//i^.f«t7« evidence of it, I agree in every thing Mr. James said, a^ to acts done with the intention of acting on behalf of one of the belligerent parties ; and 1 concur in thinking that [ktsous so acting, tliough not subjects of a belligerent state, and thougli they may be violating the laws of their own country, (e. g. the laws of neutrality), and may even be subject to be dealt with, by the state against whom they thus act, with a rigor which hap- pily is unknown, among civilized nations in modern warfare ; yet, if the acts were not done with a piratical intent, but with an honest intention to assist one of the belligerents, such persons cannot be treated as pirates. But then, it is not because they assume the character of belligerents, that they can thereby protect themselves from the consdijuences of acts really piratical. Now, here, it is true that the jirisoners at the time said they were acting on behalf of the Confederates, and that, we arc told, is in fact equivalent to hoisting the Confederate flag. But then, pirates sometimes hoist the flag of a nation in order to conceal their real character. No doubt primd facie the act of seizing the vessel, saying at the same time that it is seized for the Confederates, may raise a presumption of such an intention, but then all the circum- stances must be looked at to see if the act was really done pira- tically, Avhich would be for a jury." That is, as I read the judgment, the mere presumption of facts which alone existed in that cause. But if a commission had been produced, it would no longer have been a presumption, but a fact, and as in the case of the Roanoke at Bermuda, would no doubt have been considered sufficient. It is because the Chief Justice says that in his opinion this is a ques- tion for a jury, that the whole of the fiillacious argument has been used, that all cases of the same nature should go to a jury ; when in fact what was meant was, that as the case for the defence rested on a mere presumption, and not on positive evidence ; such as a com- mission ; therefore it was proper to send it to a jury. Li fact, when the Judges heard that the act was declared to have been done in the interest of the Confederate Government, the Chief Justice treated that declaration, naked and unsupported as it was, as rais- ing a qu(?stion deserving of grave consideration. Supposing, therefore, that the proof was conclusive that these men acted under the authority of their Government, what effect would that fact have, upon the charge that they have offended 452 a^^ainst the mmiicipal law of the other helligerent ': lietbre d'us- cusiii;^ this (luestion of hiw, however, it may be well to examine into the nature of the facts |)rove(l in this connection, and to see how far they have established the allegations upon Avhich this part of the prisoners' case rests. There has been a considerable anioiuit of evidence adduced in this cause bearing upon the position of the prisoners as Confeder- ates, and in sup[)ort of their assertions that they belonged to the Confederate army. This evidence is l)oth documentary and parol, and ajipears to my mind conclusive. Without entering in detail upon the oltjections taken to a part of it, which a[)pear to me to rest upon insufficient gro)nids, and not to bear in any respect the test even of a sujierficial examination, I hold that it is ])roved l)y that evidence, that on the llHh October last liennett 11. Young was an officer of the army of the so-called Confederate States as First Lieutenant, luider counnission from Mr. Davis of 16th e)une. 1804 ; that Young received written instructions from Mr. kSeddon, Secretary of War of the Confederate States, autliorizing him to organize in the territory of the enemy, for special service, a company of twenty soldiers then beyond the lines ; to proceed to the British Trovinces to report to Messrs. Thompson and Clay, Confederate agents here, or to Mr. Clay alone ; to execute such cntcr[)risos as should be entrusted to iiim ; to violate no local law, and to obey implicitly their instructions ; that large numbers of Confederates collected at Chicago in August hist to relieve the j)risoners at Camp Douglas ; that tho St. Albans expedition was organized there by Young from among the Confederates, under liis instructions from his (Jovernment, wliich he exhibited then, and as a commissioned officer ; that ho then reported his doings to Mr. C. C. Clay, who gave him a memorandum approv- ing them, and also approving and authorisin;, the expedition against St. Albans ; that trie other })risoners were soldiers in the Confed- erate army, acting under Young's orders, and that in the attack on the town he and his party assiuned, and declared themselves to be, d acting as sub-officer and soldiers, on behalf of the Confederate States, alleging that they were detailed for the purpose, to retalia- tion for similar acts committed by the Federals in the Southern States ; — these facts I consider and hold to bo establisiied beyond controversy by the evidence of record. Very slight attempts were made by the Counsel for the applicants to assail either the letter of appointment or commission, or the instructions given, and 1 am of Dpmion that there was no ground for their objections. The consideration of the law applicable to this state of facts, in- volves an enquiry into the nature and interpretation of the national coatract, as between England and the United States, contained in ■rjmmmMmmmia^ ^**m?<^ » <«a - 08 lie tore dis- to examine {iiid to see 3h this part adduced in 3 Confeder- nged to the ' and parol, ig in detail ) nic to rest 'cspect the ])roved hy II. Young [e ir^tates as IGth June. Ir. ISeddon, )rizing him I service, a proceed to 1 and Clay, cecutc such tc no local ^e numbers to relieve expedition m ted crates, exhibited eported his uni approv- tion against he Cont'ed- e attack on Ives to be, ontederate to rctalia- ISoutliorn ed beyond mpts were 10 letter ot" d I am of facts, in- lio national Intained in the Treaty, and as expounded liy international law, — and it will be in- structive in this connection to examine a case of a nature not very dis- similar in principle, perhaps, to tl>e one noAV before us, which engaged the attention of tlie two nations between whom was maeing justitied by any principles of international law, and that there- fore the adoption and assiunption of the act by (treat Britain — which was certainly no more than eiiuivalent to the previous author- ization of the act l>y Great Jiritaiii, cy Mr. Fox, and he demanded 'he immediate s\n'»'ender of McLeod, tiiei. held for trial for murder m the State of New York. Tthe case was an extreme one, as it was alleged that the killing of Durfee took yilace on American soil after the Curo- line had been seized, and was not an incident, or rather was not a necessary incident, to the capture of the vessel. The ."nd Jui'v found an indictment against McLeod, and he 1 km f f -■' 1 ■ • ■J .At I'm 454 ■was placey of ordiiiarc ' said — the act »lc to the ordi- he usual form. any case, this itcd. But he tted the })rin- the act of the e iudivi(hially tlie ordinary ]]ut, c'i»ntrary and of many Jud<^e Cowen isted covering "or murder, in 'j: the general ?e<[uent legis- the acquittal Governments s. The prin- .;nition of the I national act, responsihility, 3 like the one )f it, nations in an inex- ay that there >ver the same il or local la\T position that h concurrent cognizable Ky be cognizable an act refer- L»ns, a portion ig to subject ribunal. The itc, constitute :he hostile act detail of that e the gravcot aking refuge ! held respon- aible for every individual act committed as incidents to tlie fight, either before or after it, and could l>e demanded and surrendereil for trial for such act to the criminal tribunals of the country against which he was making war. If therefore the attack upon St. Albans was an hostile attack, made hy parties acting in behalf of the CoidV'(lerate Government — and expressly or impliedly aiuhorized by that Gm-ern- ment, 1 must look at the attack itself as the act which 1 am to con- sider. 1 must look at the lumierous instances which occurred during its contiiniance as the elements which in the a;'L:rei'ate con- stituto the act done by Young ami his party — as the firing of all the shots in an action taken togethei-, constitute such action. And I can no more treat the plumk-r of IJreck, as being entirely distinct and separate from the other r»'H (ffst/r, than, if the matter came before me, 1 could regard the bin-niug of any ]»articular house in the Shenandoah \^alley by any individual in tlie Fedral army, as an isolated act of arson. That acts co''nizai)le by the law of nations are necessarily free from liability to investigation, or rather to piuiishmi-nt, by the ordinary courts, is therefore an important point, adnntted by Webster himself, and sustained by the numerous authorities on this jioint that have been cited from the bar. Tbis opinion was followed in the case of the linanokc. When the captors were taken up as pirates on that occasion, they produced a com- mission from Jefferson Davis as the authority under which they were acting. Did the Court stoj) to (piestion it ? No ; the Judge 8to{)ped the examination, or rather the Attorney-General diil so. lie said — this act was committed by one who i)roduces the author- ity of his sovereign as his justification. His case therefore is no longer one which can be proceeded with as a robbery for which he is amenable individually to the ordinary courts ; and the prisoners were thereupon vmmediately discharged. And Earl Russell, in his despatch on the subject entirely sustains the action of the court — and holds that the reason given f )r the discharge was sufficient. I am aware that it has been forcibly m-ged for the ap{)licants, that the offence charged is of such a nature, that it does not fall within the law of nations, not being of such a character as is justi- fied or ])ermissible under the laws of war ; but when 1 come to the consideration of their pretensions in this behalf, I shall examine the law in reference to them, and sec if there be anything that takes this r.iatter out of the law of nations ; and if there be not, these prisoners have a right to invoke the )>enefit of that law. In support of the general projxisition I have laid down that if the act complained of be authorised by the Confederate States, individuals concerned in it ought not and cannot, be held personally respon- sible in the ordinary tribunals of law for their participation in it, I ill 456 will cite merely a few authorities : for were I to p^o over all those applicable to the point it would take me clays, not hours, to deliver my decision. I refer to Ilalleck, pp. 304, 5, G ; 1 Opinions of Attorneys General p. 81 ; Talmadge's Review, 20, Wendell, p. OtJJj ; Carrington, et al. vs. C. Ins. Co., 8, Peters, p. 522, and Vattel, Rutherford, and Burlamaqui, who are referred to by General Ilalleck sustain, the same view. And it has been held by Kent, by Chief Justices Sjjencer and Gibson, and by Professor Grecnleaf. In fact there can be no doubt entertained on the subject, for no municipal tri- bunal in any nation in the world could be found to dis[)ute it. To show how far the ]irinciplc is carried in England, I will refer to a case which has been decided there, turning on this point before the Prize Court in England, and adjudicated upon by one of the greatest judicial minds England ever possessed, — Lord Sto- well. In 1801 a case came up in which the title to a ship was called in (piestion, as having been derived from an Algerinc cap- ture, on the ground that the Algerines were mere corsairs sending out their ships to ])rey upon the eommerce of the whole world, and as enemies of the whole world, were mere pirates from whom no title to a captured vessel couid be ac(juired. Rut the contrary ground was taken by the court, and it was decided that the African iSt^ites being an established Government, audit being a recognised rule of action of that government to prey upon maritime connneice though their notions of justice differed from those of the rest of mankhid, still the title from the Algerines to the ca[)tured vessel was good. And it must be remembered that this decision was rendered against u British subject, and a Rritisli owner (4 Rob. p. 3, Case of the Helena). So it seems to be conceded, that a nation notoriously at variance with all the nations of the world, refusing to admit the principles which govern civilized nations, but prcyhig on the commerce of all; could nevertheless secure a good title for the jiurchaser of their capture by a confiscation in their way. And in discussing this decision. Judge Talmadge states that '• the same principle of immunity applies to hostilities uj)on the land and upon the sea." In the ilebaie m the House of Lords on the lllth IMay, 18('>i, Lords Derby, Brougham, Chelmsford, Khigsdown, and the Lord Chancellor all laid down in forcible language the same principle. " If then the act of these men is a hostile act done ^n behalf of one of the belligerents, and therefore a public act in the sense in which that phrase is used by the learned writers just 'cited, the State Courts would be unabh' to treat it as an ofteiice against their laws — and would violate their laws if they attempted to do so ; just as I would be violating the law of my own country if I took up the matter as a matter cognizable bv those courts — which I must do if I commit the prisoners. .^,f-.4mmitmMm4*iiim»'^^u&W'Mjf.*, 457 )vcr all those rs, to deliver Opinions of idcll, p. i)&,i ; , and Vattel, by General ices Sj)encer t there can unicipal tri- 1 to dispute Inland, I will on this point upon by one — Lord Sto- a ship was Ll^erino cap- 5airs sending e world, and vhoni no title ;rary ground Tican iSUites nised rule of ^cice though lankhid, still od. And it nst a British le Helena). at variance e principles lerce of all; scr of their nssing this of immunity " ^ In the S»'>i, Lords (.hancellor n behalf of le sense in 'cited, the ainst their so ; just )ok up the must do if Now a government that exists for the time being, oven by usur- pation, is a government de facto, and is entitlehoId or enforce international law ; no tribunal to which the oppressed can appeal as of right against the ojipressor, and conse- ([uently, if either nation refuse to give effect to the established principles of international law, the only redress is by resorting to arms, and enforcing the performance of the national obligation. k»ee upon this point also Ilalleck, p. T<\. 2 Azuni, p. <'»4. \Vheaton, pp. iMil. I am undoubtedly' bound to apply the principles (jf the law of antions to the relation between the contending parties in this war — and I hold myself so bound, not only by the proi lanuition of neutral- ity, but also by the clear principles of the laws (tf nations them- selves. I am of opinion that the civil war now existing between the Northern and b^outhern urates, constitutes a state of perfect war : that the Government has recognised ir : and that the jiarties are belligerents, and are entitled to all the rights of belligerents, and to carry < - the war, • 458 cviilencc in this ci\so. And this point is one upon which tlie appli- cants have dwelt, as ])eing most important to the due decision of this case. It has been contended hy the counsel, that this is not an act of war per .se, but if an act of war at all, is only so constructively. I do not understand this distinction. No author with whom 1 am ac(iuainted has ever made it : and it has never, to my knowledge, been urged in a court of justice. Acts of war by the law of nations, are just such acts as the belli- gerents choose to commit within the territories of each other. — These acts arc done upon the responsibility of the nation, and the soldiers committing them can in no way be held punishal)lc for them. They may be what is termed imlawful acts of war, and violations of the law of nations, but I, as a judge in a neutral country, cannot sit in jmlgment upon them. Being committed witli'M the territory of the belligerent, there is no violation of our \n\s : ■■■•')v can the belligerent invoke their vuilawfubu'ss before mo iiy the international code, reciprocity is ackuowhdged by u'.l a tihors to be one of the obligations of belligerents, and one ' > ciic tests of the lawfulness of their acts as against each othei. 'i^liii- 'or then, is done by one nation to the other, within belli- / r.'-r territory in carrying on the war, must necessarily be per- \,o'.\ "■ U) i]\e other. As a matter of "act, raids of this descrip- tion : vve been constantly permitted an) justified by and on behalf of tlie United t^tates? On what principle then can they be denied to the so-called Confederate States. However, as far as regards the violence or unlawfulness of these acts, as a neutral I have no au- thority to ^ecide. It is for the l)elligerents themselves to deal with these questions ; and where authority, either express or implied, is given by one belligerent to do the act, it is an act of war for which alone the belligerent is responsible. These doctrines do not apply, and never could ))e intended to apply, to crimes possessing no characteristic of host'iity, committed by ord.n* of a sovereign in time of peace and Avitho'.u just cause. There is no analogy between the cases cited by the coiuiscl, such as the treacherous assassination of an individual by •) hired murderei-, and cases of the description now before me. '* ney rest upon entirely different grounds. The gene- ral and abstract rule undouls: dly i ., that every subject of one belli- gerent is the enemy of ever}/ stdiject of the '^ther, and that one belli- gerent may lawfully kill bin f^nemy or seiz. upon his property wherever he finds him or it, o^cept in neutral territory. Happily for the world, of which so large a portion is constantly engaged in war, civilized nations in modern times have voluntarily imposed upon themselves rules for their guidance in war, the breach of ^vhich exposes the nation which infringes them, to the censure and ■^.MimfmimmMMAmi^^mi'iatti.i.^ vluch tlie appli- due decision of is not an act of constructively. vith whom 1 am my knowledge, icts as the belli- ' each other. — nation, and the punishal)le for ts of war, and ;e in a neutral iing committed violation of our ivfulncss before kuowl'^dged by irents, and or>e inst each othei . 'r, within belli- Dssarily be per- of this descrip- and on behalf they be denied as regards the I have no au- ves to deal with or implied, is ict of war for octrines do not Bs possessing no )vereign in time y between the issination of an escription now The gene- ct of one belli- that one belli- his property ry. Happily tly engaged in arily imposed the breach of censure and s 459 reprobation of other civilized nations, and to rein-isals ami retaliation by tiie belligerent in respect of which the breach has occurred. These abstract or general principles, and the exceptions to them suggested by the modern rules of warfare, constitute the yn'ojHtsi- tions established by the authorities cited at the bar <>n both sides. For the applicants, numerous authorities have l)een (pioted to shew that the pillage oi' private citizens, and the killing of unarmetible of proof that this species of warfare is not alluded to. And I may be personally of ojiinion that the infringements of these modern usages involved in this ex- pedition — and if we may credit the public prints, not unusual on either side in this unhap{)y strife — are cruel and barbarous and dis- graceful to the great nation between whose sections they have oc- curred. ]iut what is the conse(|uence '! Can I say that I do not consider the [)illage and burning of St. Albans such acts as are approved of oy the modern iisages of war, and therefore, although undoubt'^dly within the rights of war, that I will treat the prison- ers as ordinary felons, and deny them altogether a hostile charac- ter? Such a ]>roposition is too monstrous to sufter me to entertain it for a moment. A very few authorities will establish the correctness of these views. See \Vheaton, ])p. f)lH, oil*, 08(1 ct set|,, ()26. 8 Philii- more, 115, 110, lo7. 2 Grotius, (trans.) p. (!;"). 2 Wildman, 8, 10, 21. Vattel, ol>lt. And the distinction is actually clearly laid down in many of the passages cited for the applicants. For instance, Yattel, p. '351, being cited; see p. o52, making the distinction. Sec also the distinction taken at p. 800, from the doctrine laid down at p. 851). In p. iityc^ the distinction is taken in the sentence adjoining the one cited. As regards any violation of the law of nations, it is laid down that if persons engaged in Avar, but offending against its laws, are captured by their enemy, they may be dealt with as such enemy may think proper. If taken within its territories, they may be hanged or shot after a military trial of the most siimmary description. But it must be remembered that it is when captured within the enemy's territory, and only then, that these persons are liable to be punished in this manner. But it is pretended that if such persons are not captured ; that if they escape from the enemy and seek an K'- 4(50 asylum in neutral territory, it follows that under such an extradition treaty as ours the neutral power should j^ive them up. Air. Bethune. — Cannot they be surrendered ? Jiulye Smith. — I venture to say there is nothin;^ to that effect in the l)ooks — nothin;^ that even (listantly alludes to the possibility of surrender, because of the violation of the laws of war. The Treaty between the two f];overnnients provides that for the violation of the criminal law, ])arties shall be surrendered ; but for violation of national law, as between bellijjjerent powers, it does not give that right : for it would be to declare that because an act by the law of nations was a violation of the rules of war, therefore a private tribunal should consider itself competent to try the case as a viola- tion of municipal law. There is no law, no authority, no precedent, no work of any de- scrijition, which declares, that because a hostile act may be unlaw- ful in one belligerent as violating the rules of war, the neutral is bound to give him up to the other. I lay stress upon this point, because it is one on which there is great dirterence of opinion among the counsel at the bar. An ol)vious illustration of the true distinction was put at the bar. All the authors declare that it is unlawful to shoot a prisoner, after he is surrendered. IJut would a person acting uidawfully in this respect 1)0 liable to extradition as an ordinary felon ? From the commencement of the seventeenth century, when the principles of international law began to awaken attention, down to the present time^ there is no authority that docs not recognise the dis- tinction now under discussion. JJut here I dismiss this branch of the case. If, then, the Confederate States had the undoubted right to appoint otticers and soldiers, and if we are undoubtedly obliged to recognize that right, then the view I entertain of the evidence indi- cates the mode in whicii 1 regard the position of Lieut. Young, before me ; as I have just stated, I consider it proved that Young was so appointed, and that the other prisoners were soldiers of those States, forming, with the remahiing persons who joined in the attack on St. Albans, a party organized for the purpose of a hostile expe- dition against that town, under the authority of their (lovernment. The authority of the party for the expedition seems to me to be sufficiently established by the evidence. It is truly said by writers on this subject, that such authority may be express or implied, (Wheaton pp. 026-7), ami in this case both kinds of authority appear to have existed. There is direct authority, from the oft'ect of the instructions given to Y'oung by Mr. Seddon, and by Mr. Clay, to whom ho was refered by Mr. Seddon ; and there is im- plied authority from the possession of military rank in the service wiiMai^\iid» 4G1 li an extradition i;^ to that effect L) the ywssibiHty I of war. The lor the violation )ut for violation K'S not n;ive that 't by the law of ■ofore a private case as a viola- rork of any de- niay be unlaw- , the neutral is upon this point, nee of opinion tion of the true ehirc tliat it is ed. Hut would ; to extradition tury, when the ion, down to the .'o_ij;nise the dis- this branch of lubted ri;j;'ht to [('(Ijy obji^fed to evidence indi- Lieut. Young, led that Youn": )ldiers of those d in the attack a hostile expc- (•overnment. ns to me to be lid by writers IS or implied, of authority om the oft'ect , and by Mr. there is im- n the service of the Confederate States. As to the direct a\ithority received by Young, it is unnecessary to quote books ; it is a mere matter of testimony excejit in respect of the effect of the alleged breaci\ of neutrality, which I shall have occasion ]ires('ntly to discuss. But as the avithority given by Mr. Cliiy has been stated to be an absolute nullity because given here, I may say a word respecting it, in passing. 1 do not hold that the approbation <»r authority of Mr. Clay was essential to bring the acts (»f the prisoners at St. Albans within the impunity afforded them by international law : but as Counsel have laid much stress upon this point, I will state my views upon it. I find no rule or principle of law. which stamps this act of Mr. Clay with absolute nullity : as between the belliger- ents. Nor do I find his position as a diplomatic agent in a neutral country, at all unusual. We have the well known instance of Mr. Mason in England, and Mr. Slidell in France. They have not been recognized as ambassadors because the independence of the South has not been recognized by those governments ; but if they have not those }>owers, they have rights as agents of a belligerent. The concession of this position docs not admit that they hold the position of ambassadors nor that the government of those countries have recognized them as accredited envoys. Hut in fact Mr. Slidell and Mr. Mason have held correspondence with the ac- knowledged officers of the English and French governments — they have exercised certain powers though they have not been received as ambassadors of a recognized power. Earl Kusi'ell has corresponded with Mr. Mason as the agent of Ins government ; and Mr. Slidell has had interviews with Mr. l)rouyn de L'lluys in the same (juality. And we know also that Commodore ]?arron directed the cruise of the Florida which terminated in the bay of Bahia. And there are numerous instances in which the United States government have sent agents to other countries under similar circumstances. As to the implied authority derived from the Commission, I will refer to two or three books, to which numbers of others, of the same tenor, might be superadded. Mr. Lawrence says (Wheaton, p. 248 : — '' But in the case of one having a commission from a *' party to a recognized civil war, no irregularity as to acts done ^^ jure belli, vi\\\ make a ])irate." Mr. Wheaton says — speaking of the abstract right of the subjects of the belligerent j)owers to assail each other — that : " the usage of nations has modified this " maxim, by legalizing such acts of hostility only as are committed " by those who are authorised by the express or implicit command *' of the state. Such are the regularly covimismned naval and *' military forces of the nation," p. 027. In the Chesapeake case, tJA 402 Jud^o Ritchie only iioMs it to bo necessary that, oven neutrals engaj^in^ in acts of ho.stility .should be " acting under the authority '* of a commission which will bear the test of a strict legal scru- "• tiny." " Belligerents," he says, " may make cajitures without " commission," but that neutrals can only protect themselves by commissions from, or acting under authority of the billigerent government. ISee on this point, opinions of Attorneys Gt uoral, Vol. 1, p. 81, 20; 2«J Wendell, p. 076, 1 Kent, pp. <>4 ai;'l 'JO, Lord Russell to Lord Lyons, Wheaton, pp. 253-4. Ilalleck, p. 888. Debate in the House of Lords on the i)roclamation of neu- trality. If these propositions of law and fact are sustained by the author- ities and by the evidence of record, as I believe they are, it follows necessarily that the attack on !St. Albans by Young and his party must be regarded as ;i hostile expedition, undertaken and carried out under the authority of the so called Confederate States, under the command of one of their officers. And from the principles I luive laid down, I unist also hold that the acts of Young and his j)arty on that expedition, while in their enemy's country, in so far as they have a hostile character, do not fall Avithin ordinary crimi- nal laws, but under international law and the rights of beligcrcnts, and that the }»ropriety of their acts in that capacity must be settled between the belligerents, and not by a neutral Judge. But I can- not leave this branch of the subject without examining an argument of the Counsel for the applicants, which is to this eft'ect. Tliey say that the act which apparently violates the municipal law of Vermont, and which it is attemi)ted to protect from the conse- ipiences of that violation, by invoking the immunity afforded to belligerents by the laws of war, is really deprived of its belligerent character, and consequently of that immunity, oy the breach of the laws of neutrality, which they say the prisoners committed. That is the broad proposition of the prosecution. They say, you cannot enjoy the benefit of the law of nations in this instance ; you cannot be considered as belligerents. Whatever characteristic of bellige- rency you may have had, you have cea&ed to possess it. Y'ou came here seeking an asylum, you placed yourselves under the pro ection of the laws of this country : you have violated those laws by •violating our obligations as neutrals, and you have theieby ceased to Ve entitled to be regarded as belligerents. And this argument has been pushed so far as to assert that under the facts proved, the prisoners had ac(][uired a domicile here, and had lost not only their character as lawful belligerents, but their national character. Here also much discussion may be rendered unnecessary by ascer- taining what facts are })roved in support of these pretensions of the applicants. 403 even neutrals r the authority •ict legal scru- jitures without themselves by the billigerent neys Grnoral, >p. i>4 at) 'J 'JO, Ilalleck, p. ination of neu- by the author- are, it follows and his party n and carried States, under le principles I !foung and his ntry, in so far rdinary crimi- 3f belige rents, mst be settled !. But I can- 5 an argument ct. municipal law m the conse- afforded to ts belligerent breach of the litted. That you cannot you cannot ic of bcllige- t. You came le pro;,ection )sc laws by i';by ceased IS argument cts proved, ost not only character, ry by ascer- 'etensions of ,1 An examination of the evidence satisfies me that the real state of the case is : that during the autumn of 1803, Young escaped from the United States, where he had been held as a prisoner '~f war, and that he shortly afterwards reached Toronto, where he remained till the spring of 1804, during part of which time he appears to have attended lectures at the University. That he left Toronto in the spring, declaring his intention of going to Richmond ; that he was in Halifax in May, with the same expressed intention; that he re- ceived his appointment and three letters of instructions, dated at Richmond, in June ; that he returned to Toronto with his papers in July ; that lic was in Chicago with a large immber of Confederate soldiers, in August ; that he was at St. Catherines, in Canada, where Mr. Clay resided, in September ; that he was in Montreal, about the beginning of October, at St. Johns, C. E., on the 11th of October, and at St. Albans, on the 10th of the same month. That Spurr, Huntley, and Teavis, were also seen in r ida ; Spurr, in Toronto, in the Avinter of 1803-4, and Spurr, '1 , is, and Hutchin- son, at St. Johns, at the same time with Y'oung, tliough leaving that place separately. And that they were at Chicago, in August last. While at Chicago the expedition against St. Albans apjK'ars to have been organised, and the party of Confederate soldiers raised according to Young's instructions. And while at St. Catherines, Y''oung reported his doing to Mr. Clay, and obtained his sanction, both verbal and written, of the projected attack. While at Monu-eal, in October, he received from Mr. Clay i5<400 towards the expenses of the expedition. Passing over, for the moment, the question, how far this state of facts constituted an offence against the laws in force for the pre- servation of our neutrality, (which seems to be doubtful but upon which it is unnecessary for me to give any o))inion ;) would or would not the violation of our neutrality take away the prisoners' characters as belligerents ? This is the exact point raised in this connection by the applicants, and great stress has been laid upon it, and many authorities cited to shew, that the affirmative of this proposition is the law. It is urged that the prisoners conunitted the act complained of, after they had ceased to be citizens of ti\e Con- federate States, and after they had voluntarily resigned their belli- gerent character. It is asserted that their residence in this country involved a change of domicile on their part; and that in fact Young took up xiis residence there, animo manendi. Therefore, it is said, they have violated the law which regulates persons domiciled in this country, because, by acquiring that domicile, they became citizens of this country, bound by its laws ; and that, as a consequence, they cannot invoke the privileges of belligerents. ^I ^>. ^> A %, c^..\t. IMAGE EVALUATION TEST TARGET (MT-3) // :/. c/:^ '^ '/ 1.0 I.I 11.25 1.8 Photographic Sciences Corporation U 11.6 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 \ \\ , :• m H'! :; \i ' . • ? r ' ;r- \ ; 1 ' ■; , ■ ' ifl If •■>■ ■ ' kii'- m-- f; The first question that necessarily arises in the examination of this pretension of the applicants, is : what are the facts from the evi- dence ? does it appear that the prisoners have acquired a domicile, or even have taken up their residence here ? There is no doubt but that the evidence shows that, in 1863, Bennett Young did come to this country as a political refugee ; that he resided in Toronto for some months, and that he attended Lectures at the University, and was again seen there in July or August. It is argued by the prosecution, that these circumstances constitute proof, so far, of an intention on his part to remain in Canada, that this involves, in the eye of the law, a change of domicile, which prevents his longer claiming the character of a belligerent soldier ; and places him under the authority of the laws of this country, which forbid, in the most positive manner, the doing of any thing contrary to our obliga- tions as neutrals. That Bennett Young remained in Toronto for a time, under the proteclicn of the laws of this country, may be taken as proved ; but the presumption as to his animus manendi, passes good only so long as he remained. If a foreigner departs from a country, the animus revertendi is presumed, and the animus manendi neces- sarily disappears, as aifecting the law of domicile. The existence of the animus manendi is presumed from the fact of continued residence in a country. But, as to Young, he left the Province in April or May, to go down to the Confederate States. The proof of this is in the record. In short, the fact of his being in Rich- mond, and receiving there a commission from the Confederate Government, appears to me to be clear. (Some discussion here occurred as to the proof of the presence of Young in Richmond.) Judge Smith. — The tenor of the whole of the facts leads to the conclusion that he went to Richmond, and there received his com- mission and instructions : and I shall assume, for the purpose of my argument, that this was the case. Does this voluntarily entering into the service of his country, as a Confederate soldier, not show the intention to retain his domicile of origin, and his national character ? Now, the reception of the commission shows that he returned to the service of his country. So far as this question of domicile is concerned, the animus manendi cannot be considered as existing, but the animus revertendi is rather to be presumed. There can be no doubt therefore, that in point of fact, there was no acquisition by him of a domicile here, nor any loss of his national character. But so long as he remained here he was certainly bound by our laws as much as if be had been a British subject. Assuming however that there was a breach of neutrality connected in some way with the expedition against St. Albans, 465 lination of this from the evi- ed a domicile, e is no doubt ung did come )d in Toronto le University, is argued by proof, so far, this involves, prevents his nd places him forbid, in the bo our obliga- le, under the as proved ; passes good •m a country, mendi neces- 'he existence )f continued he Province The proof ng in Rich- Confederate presence of leads to the ed his com- rpose of my y entering r, not show lis national wa that he question of considered presumed. ■act, there ny loss of ere he was a British neutrality :. Albans, would that breach of our neutrality take away from a hostile act committed in the enemy's territory, the immunity due to it ? The Counsel for the prosecution answer this question in the affirmative. But I cannot find this pretention sustained by any authority ; certainly not by any of the numerous authorities they cited. The law of nations does not recognize such a principle. No judgment of any court that I am acquainted with has ever declared it. On the contrary, the true doctrine incontrovertibly is, that the violation of the neutrality of a nation, by a belligerent, has no effect or bearing whatever upon the belligerent character of the offender, in reference to acts done within the enemy's ter- ritory. That such violation is illegal no one denies, and in that respect the authorities cited for the applicants are unimpeach- able. But those authorities have reference chiefly to the transfer of property by capture, and they properly hold that a maritime capture may be held void by reason of any breach of the law of neu- trality Avhicli occurred in making it. But this objection to the validity of a maritime capture is a thing with which belligerents have nothing to do. If the Southern belligerent violates our neu- tral or municipal law, what has the United States Government to say to that ? Can they complain of the violation of our law ? So far from that, all writers on international law hold that no violation of neutral tcrritorv can be considered at all, in the interest of either belligerent. It is the neutral alone who can complain. But examining for a moment the pretension as to the deprivation of the character of hostility by a breach of neutrality. Take the case of Gen. Lee coming here with 75,000 men, taking possession of one of tlie railroads in Canada, conveying his troops through the heart of our territory, and in retaliation for acts done in the South, making a raid on Vermont. Lee's authority to do this, would not be more extensive than Young's was ; and the act would be a greater breach of neutrality than Young's could have been. Is it possible that Lee would be held to have lost his belligerent character and to be liable to be treated as a mere robber ? Or that he would be held to retain his belligerent character, merely because he perpetrated the breach of neutrality with more men than Young had, their acts being the same, and their authority derived from the same source. Surely he Avho commits a similar act, though with but 20 men, would be entitled to be judged by the same rule. A different decision would be manifestly wrong in prin- ciple. And if the doctrine be applied fairly, as we, as neutrals, are bound to apply it, what becomes of the hostile character of the thousands of Federal soldiers, who have passed through Western Canada. Are they all robbers because they have done so ? are the soldiers illegally enlisted here for the Fed- EE 466 I V M iv'l eral armies robbers also ? But assuming that there is a violation of neutral territory in this case, in its largest possible sense ; that these men have gone through this country to St. Albans to make this raid, and that doing so, as well as receiving instructions from Mr. Clay, were in violation of the laws of neutrality. Let us see how far the authorities sustain the proposition I have laid down, that it is the neutral only, and not either belligerent that can complain of such violation, at least before any court of justice. I shall cite for convenience sake, the letters of " Plistoricus" to illus- trate the matter. They are sustained by the force of their reason- ing and also in every" case, by the citation of authorities. There is no rule upon the point now under consideration laid down in the letters of " Ilistoricus," which is not supported by authority, not only from international law, and the text Avriters, but to a great extent, by the decisions of the Courts of England and of the United States themselves. Mr. Harcourt says, p. 150 : " The elementary and universal principle which lies at the root of the whole question, is the absolute title of the neutral sovereignty to immunity, whether as regards its territory or its prerogatives, from the interference of belligerent operations of any kind. A violation of this immunity is one of the clearest and highest offences against public law. For one belligerent to pass through the neutral territory without the leave of its Sovereign — to carry on hostile operations within neutral jurisdiction ; to levy soldiers or sailors, or to equip " vessels of war within the neutral soil — are familiar instances of violations of the rights of neutral sovereignty. They are acts eminently unlawful, and the neutral Government is entitled to prohibit, and, if necessary, to avenge their commission. In order the more clearly to illustrate the argument, I will select the particular instance of levying forces and equipping arma- ments by one of the belligerents within the neutral territory, without the leave of its Sovereign ; in order accurately to exam- " ine the rights and duties to which such an act gives rise. It is now admitted on all hands (though the matter was at one time faintly disputed) that such conduct on the part of a belligerent is a gross violation of the rights of the neutral Sovereign." And he says at p. 151, " Such acts are a clear violation of right as. be- tween the offending belligerent and the neutral government." And at page 151 he continues, " Such proceedings are, therefore, upon both grounds in the highest degree unlawful ; municipally, " as between the Sovereign and the subject ; internationally as " between the offending belligerent and the offended neutral." This is a statement in succinct and clear language, of the doc- trine which pervades every case cited on this point by the Counsel a u u u u (< a i( a a a (( (( u a n (( ■iC^ is a violation sense ; that ans to make uctions from et us see how lown, that it an complain ce. I shall is" to illus- their reason- ties. There down in the ithority, not to a great f the United d universal tion, is the ty, whether nterference is immunity public law. 3ry without ;ions within ■ to equip nstances of 3y are acts entitled to ssion. In Avill select )ing arma- territory, to exam- ise. It is one time )elligerent " And gilt as. be- irnment." therefore, nicipally, onally as ral." ' the doc- i Counsel (( for the prosecution. It is an unlawful act, they say both munici- pally and internationally, to violate the neutrality laws of the neutral power ; and their position is unassailable to that extent. But I do not agree with them as to the inference they draw from this rule as applied to the present case. Our laws upon this subject are not made to protect the United States, but to protect ourselves. Their object " is to prevent, foreign nations injuring us, not to protect " them from one another" — (" Historicus," p. 152.) And the breach of them is a matter with which the other belligerent has nothing to do. " The right Avhich is injured by the act of the " oflFending belligerent is the right of the neutral government, and " not that of the other belligerent." And " the important conse- " (juence of this proposition is, that it is the neutral and not the " belligerent, who is strictly entitled to claim or to enforce the " remedy. And he is the only person who is entitled to complain " of and to redress its infraction." To these statements of the principles applicable to this point in which I use the words of Mr. Harcourt, I might add also in his language that " when this " point is properly apprehended, the solution of the question be- comes simple and satisfactory." And I have no doubt but that the doctrine thus laid down is a sound one. It may be illustrated by the instances of the passage of troops through neutral territory (1 Kent, p. 119) the levies of troops in the neutral country (lb., 119) ; Captures in neutral waters which are declared to be " as be- " tween enemies to all intents and purposes rightful " (3 Wheaton, Rep. 435. The Etrusco 3 Rob. 162), and captures made without the territory by vessels which have been equipped in violation of the laws of the neutral state. (Brig Alerta vs. Bias Momet, 3 Peters 425). These illustrations are cited by Mr. Harcourt, (pp. 153, 4 and 5), and they bear a close analogy to the various breaches of neutrality charged against the prisoners ; namely, that they organised in this country ; that they passed through it on their way to St. Albans, and that the expedition proceeded from this country. These are on all fours with some of the illustrations I have referred to, as cases in which the neutral alone " can com- plain of or redress" the violation of her territory ; and that " the right which is injured is the right of the neutral alone," and " not that of the belligerent." I have taken these authorities from Mr. Ilarcourt's book for con- venience merely, but it would be easy to multiply them. The correctness of the doctrine they lay down cannot, I think, be successfully disputed. Counsel have cited a number of authorities to prove that a breach of neutrality is unlawful, that captures in violation of neutrality are subject to be declared void, and are in violation of international law ; but they have not cited any authority I I i;! ! 1 ■•-V r'A i- -^ V', ,, >^ 408 to prove that suck illegality or such violation has any other effect than to make the offenders responsible to the neutral. In matters of violated neutrality the neutral alone is the judge. In this case, if our Government permitted the passage of Young with his party through our territory, as an armed party of Southern troops, the United States Government might complain to our Government of the granting of the permission, unless we have granted similar privileges to her troops, in which case she could not. But such passage, and still less a peaceful passage, of un- armed or apparently unarmed men through our territory, can afford no grounds to the United States to appear before our Courts, and urge that our neutrality has been violated ; and such a charge from them assumes a character of absurdity when it is made a ground, indirectly it is true, but still a ground, for an application that the offenders be handed over to them for punishment. If that is law 1 am at a loss to imagine upon what principle it can be held so. I have not found such an opinion laid down in the books, and I cannot but consider that it proceeds from fallacious reasoning. But there are recent illustrations of this vicAv precisely in point. The appli- cants have endeavored to shew that the prisoners had become British subjects, pro hoc vice, as they term it, and subject to the obligations of British subjects. But even granting that they were actually British subjects, which is the most favorable case for the appUcants, the rule contended for would not apply, if they acted under a commission from the belligerent. I have already adverted repeatedly to the Gerity case, but I must again refer to it in this behalf. Ch. J. Cockburn says : " I " concur in thinking that persons so acting, though 7iot subjects of " a belligerent state, and though they may he violating the laws of " their oivn country * * * such persons cannot be treated as *' pirates." In the Chesapeake case Judge Ritchie, speaking of neutrals engaging in hostilities, says : " They may make themselves '■'■ amenable to the law of their own country * * * but they " cannot be dealt with by the belligerent against whom they are " acting, as pirates." And further on he states : they cannot *' toithout any comnnssion or authority fit out in a neutral country a hostile expedition against a power at peace with such country," &c., &c. And he warns them that if they do so, they must take care to have a commission. In the Gerity case the party went ol board the vessel at a neutral port ; in the Roanoke case they did so also ; in the Chesapeake case the prisoners were British subjects yet it was distinctly laid down in two of those cases that a violation of neutrality did not affect the character of belligerency in the prisoners ; and in the third, so far as I know, the question was not attempted to be raised. 460 >ther effect the judge. of Young f Southern lin to our i we have she could ige, of un- can afford 'ourts, and large from a ground, n that the at is law 1 3ld so. I d I cannot But there rhe appli- d become ect to the they were >e for the hej acted se, but I lays : " I ubjects of e laws of reated as aking of lemselves )ut they they are y cannot country ountry," ust take went OL they did lubjects violation in the was not I am therefore constrained to hold that the attack on St. Albans was a hostile expedition authorised both cxpressedly and impliedly by the Confederate States ; and carried out by a com- missioned officer of their artny in command of a party of their soldiers. And therefore that no act committed in the course of, or as incident to, that attack can be made the ground of extradition under the Ashburton treaty. And that if there had been any breach of neutrality in its inception, upon which point I state no opinion, it does not affect this application, which must rest entirely upon the acts of the prisoners within the territories of the State demanding their extradition, and upon their own fttatus and authority as belligerents. Before pronouncing the judgment which is indicated by these remarks, I would however say a few words upon another branch of the case, which involves considerations of the highest character; and which, though I do not allude to them as deciding this case, must have their weight whenever political considerations appear to form an element in any act for which extradition is demand- ed. It is conceded without controversy, by writers and by the Courts that extradition laws are to be interpreted by the law of nations, in so far as the obligations created by them on the part of one nation to another are concerned ; — and that the then existing public law of both nations form an essential part of the national compact which is created by the passage of an extradition treaty. In 1842, when this extradition act Avas passed, the public law of Great Britain as well as the public law of the United States became incorporated with the national compact. It can not be said that England or the United States passed this act without reference to the public law of either country. Then, it became part of the contract. The stipulations of the contract with regard to the definitions of the crimes covered by it, were to be carried out in conformity with the municipal laws of both countries, in so far as they agreed. We have then the law of nations, and both the public and municipal law of both countries, combining to form the compact effected by the passing of the Ashburton treaty. Now, if the public law of both countries, at the time the extra- dition Act passed, recognized the principle of international law, that lawful belligerents are entitled to all rights incident to a state of belligerency — that should be regarded as the law governing us, just as much as if it were actually inserted in the Treaty. But the United States deny that the so-called Confederate States are law- ful belligerents, and though virtually they treat them as such, they refuse formally so to recognize them, as to give them that status in their Courts of Justice. It is upon their denial of the position of belligerency to the Confederate States, that such claims as those Ili'll i 1 f-:m- l<: I, I,! lil ! ?!« mm lit ■;---■ i''s ■■ , i, fm f *'»t . • I, i II ' ' 470 ■\vc read of, on account of the depredations of the Alabama and tlie like, arc ))ascd. But we cannot bo influenced by the position Avhich the United States have thus chosen to assume. They might as well choose to ignore portions of the stipulations of the Treaty itself, as insist upon the acceptance of such an interpretation of it. For my part I must, at all events, adopt the view entertained by iny own country, and finding that differ from the one adojtted by the United States, I feel additional responsibility and the necessity of increased caution, when I am required by the latter coimtry to do my part towards the carrying out of the Treaty. The United States themselves, and all civilized countries, make a wide distinc- tion between offences committed during a normal state of things, and those which arc incident to political convulsions, or the unusual condition, politically speaking, of any portion of any country. Under this distinction, political oflfenders have always been held to be excluded from any obligation of the country in which they take refuge to deliver them up, whether such delivery is claimed to be due under friendly relationship, or under treaty, unless in the latter case, the treaty expressly includes them. The case of fugitive slaves appears to me to rest to some extent on the same ground ; and on principle, the extradition of a fugitive slave for taking life in defence of his right of personal freedom, would seem to me to be unsustainable, except by a nation recognizing by its laws and within itself the institution of slavery. And deserters have been usually treated as being in the same category. Political offenders, however, form the most conspicuous instances of exclusion from the operation of the extradition law. No nation of any recognised position has been found base enough to surrender, under any circumstances, political offenders, who have taken refuge within her territories — or if there be instances, they are few in number, and are recorded as precedents to be reprobated rather than followed. And it is in connection with struggles like that now going on in the United States, that the doctrine of asylum has received its most remarkable illustrations. The famous letter of Lord Palmerston on the subject of the Hungarian refugees, has been repeatedly adverted to, and contains such an exposition of the principle as might have been expected from that statesman. (The learned judge here referred to Wheaton at pp. 40, et seq.^ and 139, et seq., discussing at considerable length the position and relations of a nation during a civil and revolutionary war; also the effect of changes in the obligations of treaties, where either party to them has been revolutionized.) I do not hold, however, nor have I any right to hold, that the treaty is not in force, by reason of the unhapj^y circumstances in which the United States find themselves. But I do think that I 471 l)ama and 10 position 'hey mi;i5lit lie Treaty ition of it. 'tained l)y lojited by necessity ?ountry to le United le distinc- )f things, unusual country. ■n held to they take ned to bo the latter ' fugitive ground ; dving life me to be id within 1 usually lowever, peration tion has stances, tories — ecorded g on in its most nerston 3atedly iple as it seq., m and so the party It the ces in that I am bound to scrutinize Avitli a greater degree of caution, the cir- cumstances of any case Avhich a))pear to ])Osse.ss a jjolitical char- acter, or Avhich seem to grow out of the struggle which is now proceeding. And I must be the more scrupulous in weighing the pretensions of the prisoners as to their justification by their pos- session of a belligerent or political character, when I know, that the defence arising out of such a chsiracter, which England would re- cognize as valid, if sustained ; would not even be received or listened to in the United States as being sufficient in law, however fully substantiated. This question Avas discussed in the United States, during the trial of the " Savannah " case ; and the defence of the prisoners that they were commissioned belligerents, was ignored by the dictum of Judge Nelson, charging the jury, as matter of law, that neither he nor they could take that defence into consideration at all, until the belligerency or independence of the Southern States was recognized. It behoves us, therefore, to be satisfied tiiat the ofTence of robbery, according to our interpretation of the position of the Confederates, Ins really been committed, before I consent to order these prisoners to be remitted for a trial of the issue they raise in their defence, to a tribunal which would ignore that de- fence as insufficient in laAv, however satisfactorily established ; and I consider the remarks of Judge Crompton already referred to, as being peculiarly appropriate to such a condition of things. With this view of my duty, I have gone carefully and at perhaps unnecessary length into this matter. I have considered it proper to enter at greater length into the exam.ination of some cjuestions, which perhaps in themselves admit of no great doubt, but upon which in my humble judgment erroneous views have been enter- tained, and urged with great earnestness at the Bar. I have endeavored to guide myself, by Avhat is recognised as law by the civilized world, instead of suffern.g myself to be swayed by popular cries, or by the passions and in/^'uces which the proximity of this lamentable convulsion has stirred ip among us. And I have come to the conclusion that the prisoners cannot be extradited, because I hold that Avhat they have done does not constitute one of the offences mentioned in the Ashburton treaty, and because I have consequently no jurisdiction over them. I am of opinion therefore that the prisoners are entitled to their discharge. (The conclusion of the learned Judge's remarks, which occupied three hours and a half in the delivery, Avas greeted Avith loud cheers in Court, Avhich the officers Avese unable to suppress ; and Avhich Avere taken up and repeated by the crowds in the lobbies and outside the building.) Hon. Mr. Abbott. — I Avould like to knoAv Avhat my learned friends for the prosecution of things intend doing upon the other charges ? li* '!| mm '^f m, W'y- n^^; *■■ 472 3Ir. Devlin. — I propose to proceed -with every charge against the prisoners. ffon. Mr. Abbott. — Wlicn will you proceed ? The Court. — The prisoners are remanded till Saturday on the second charge, when the enfiuiry upon it will come up. Wednesday, April 5th. At half-past ten o'clock this morning, the five prisoners, Bennett II. Young, Marcus Spurr, Sijuire Turner Tcavis, Charles Moore Swager, and William Huntley Hutchinson, were brought into Court, and soon afterwards Mr. Justice Smith took his seat on the bench. Mr. Johnson, Q. C, and Mr. Carter, Q. C, were present on behalf of the Crown, and Mr. Devlin on behalf of the United States. The Hon. Mr. Abbott, Q. C, Mr. Lnfi'^mme, Q. C, and Mr. Kerr were present on behalf of the prisoners. Mr. Devlin stated that since the last sitting of the Court he had been officially informed by the Hon. Mr. Cartier that after the judgment of His Honor on the charge for the robbery of Mr. Breck, it was the intention of the Government to proceed against the prisoners for breach of the neutrality laws. Having commu- nicated this fact to the United States Government, he (Mr. Dev- lin) was instructed to withdraw the charges against the prisoners before the Court. He accordingly asked to be permitted to with- draw the charges. Mr. Abbott was in hopes the learned Counsel Avould go one step further, and say that no further application for extradition by rea- son of the occurrences of the 19th October last, would be made by the United States government. Mr. Devlin said the learned Counsel asked too much of him, as his functions ceased before this Court, and did not extend beyond the cases actually before his Honor. 3Ir. Carter said that as one of the Counsel for the Crown, he might be permitted to say something with reference to the rumors which had been circulated as to the course the Government in- tended to pursue. The Government had adopted such means as would be most Ukely to bring these men to trial on charges of vio- lating our neutrahty laws ; but it was not the intention of the Government to institute, nor would they aid in instituting, nor would they countenance, any further proceedings with a view to the ex- tradition of the prisoners. So far as the Government is concerned, he desired to disabuse the public mind of a misapprehension in relation to the course of the Government. It might be, and had been, asked, why the Government did not proceed against the pri- soners, in the first instance, for violation of the neutrahty laws. No such proceedings could have been taken. It was only when ^^^Tt-'^il! 'irge against Lirdaj on the ;Vpril 5tli. ers, Bennett arles Moore I'ouglit into seat on tlic ere present the United Q- C, and >"rt he had t after the 'rj of Mr. ed against ig commu- (Mr. Dcv- i prisoners 3d to with- one step n by rea- made by )f him, as beyond rov»n, he e rumors iment in- ^eans as s of vio- of the 51' would the ex- icerned, tision in md had the pri- 7 laws. Y when 473 the prisoners liad gone on their defence, and tlie line of defence had been developed, that any evidence was adduced to form the basis of the judgment, that they were to be regarded as belligerents, and in conseijuencc of that judgment, and then only, could the Govern- ment take any proceedings against them for breach of neutrality. Mr. Abbott was very glad to hear so distinct a declaration from the learned Counsel for the Crown ; but he had yet to loarn that the Government could do anything in such matters. He would like to know if the Government could control the law. The Statute had accurately prescribed the process by which cn([uiries of this nature were to be conducted, and the Government could neither promote nor prevent such inquiries. The United States Govern- ment had free access to our tribunals to demand a judgment authorising extradition ; and it was the magistrate alone, before whom such a proceeding might be taken, Avho could determine whether the circumstances would justify extradition or not. The Governor-General might finally prevent the extradition of the prisoners by refusing to sign the warrant, and a jdedge that he Avould so refuse, would settle the matter. But he (Mr. Abbott) did not understand that any such pledge was given by the Counsel for the Crown ; nor did he ask for or expect it. If the case came up, the Governor would doubtless act according to his discretion, and under the advice of his constitutional counsellors. But it was the United States who should declare what they intended to do, as upon them depended the initiation of proceedings. He therefore desired the learned Counsel for the United States, in order to allay the feeling of the public, to declare that it was not the intention to proceed with any other charges. The Government had declared their in- tention to remove the prisoners to Upper Canada ; and the learned counsel for the United States had withdrawn all the charges then before his Honor ; these charges originally consisted of the case of Breck, already disposed of, and that of assault with intent to mur- der. Let his learned friend (Mr. Devlin) state that the United States abandoned their claims for extradition, and that would be sufficient. He knew the extraordinary excitement that had been created ; not only among those persons who were against the ex- tradition of the prisoners, but also among those who held a differ- ent view ; by the belief that the removal of the prisoners to Upper Canada was only intended to bring them within the jurisdiction of Judges who were supposed to entertain a different view of the law from his Honor. The precautions taken to put down any violence, proved the extent of that excitement. His learned friend was a citizen of Montreal as well as himself, and he could not desire to see the city the scene of tumult and perhaps of bloodshed, all of which might be prevented by a word from him. He (Mr. A.) of 474 ^ ''\: . Li: J' ■ ■ ■'■ .1 « 1 .11^ course nmtlc no pretension to askin;^ I'or this as a Y\<^]\t. lie only su;;;;este(l it as a jiroper step to tramiuillise the jmMie mind. Mf. Devlin saitl it uas Imniiiiatin^ to tiie last (le;r;ree to Ite olili^ed to listen to siieh statements. Was it ])ossil>le that the causes of law ami order have no friends, in this city ; that wa are ruled by a mob ; that Justice had Hed altonfether from amon;j!st \»s ; that the (fovernment of Canatla must succiunh to. and in all its future (lealin'^s with the country he intltienced and <^uided hy, the rowdy element. Mr. Ahhott admitted that the (Jovernment was ri^^ht in hrin;i;in<^ these men to trial for a violation of Canadian law ; hut the next moment he told them that this ri>;;ht C(juld only ho exercised upon certain conditions, dictated hy the prisoners, otherwise we might find ourselves plunged into a state of tumult, riot, and blood- shed. But he disregarded these threats, and helieved that the Government would he s\ipported in the exercise of its legitimate authority. "We were gravely told, that the citizens of Montreal were excited to an alarming degree, because the (rovernment had dared to hold the St. Alban's raiders to account for having violated the sanctity of the asylum, atibrded to them in Canada ; and that it required the ])ositivc assurance actually demanded from the Counsel for the rnited States, to restore tranquillity, to ensure confidence, and to allay the rising wrath of the exasperated citi- zens. Well, for his part, he would repeat again and for the last time, that he would make no other promise or pledge than that actually given ; and if his refusal to do so, should entail all the disastrous conseciuences indicated in the speech of his learned friend, he (Mr. Devlin) Avould say far better and more honorable would it be to encounter these disorders, than to incur the odium of entering into dishonoring bargains Avith persons accused of crime, for the privilege of being allowed to put them upon a trifil, which they knew well would terminate like those through which they have heretofore so successfully passed. In so far as the United States Avere concerned, the liberation of the prisoners was not feared by his clients. They had met and conquered more troublesome and more desperate enemies, and more formidable assailants than the persons now before this Court, and could do so again. But what the United States do care about was, our good faith. They wish to know whether we mean to fulfill our treaty. engagements ; whe- ther we intend to preserve our neutrality, or whether while pre- tending friendship, we were not acting the part of war's disguise and treacherous enemies. This was the true cause of the interest taken in the extradition of the oifenders by the United States. Mr. Carter said that he did not know what further statement his learned friend (Mr. Abbott) could ask, after the statement of the learned Counsel for the United States. It would clearly be impos- mm • He only nind. ';,'ive to Ik> t tlio causes arc niK'd ^tus; that ' its future the rowdy ^s ri;,'lit ill law ; l)ut ' oxorcised orwiso wc ^nd Mood- tliat the lt';,'itimate Montreal ment liad ; viohited and that tVoni the ensure ited citi- ' the last lan that all the learned )norable dium of crime, which '7 have States red by le and an the what f wish whe- prr- :uisc ;erest it his the ipos- 4(i) sihle to entertain an application in Upper Canada after the (Jovern- ment had instituted prnceedin,i:s based on these acts, as acts of hostility, and not as coiinnon robberies, 'riic (lovcrnnicnt was the (lovernnient of rjiper (,'anada as well as of Lowit Canada, and would not be likely to disclaim in I'pjier (Canada what it had autho- rized in Lower (Janada. lie tbouiiht it unfair towards the learned Counsel for the United States to ask from him a pledge after the declaration lie had made. Mr. Abbott said he had asked no ]iled;:;o, he had simply su;;;:;estelication in •P., being ce to the lich their soners on to be per- removal re imme- under a •ronto on A P P E N I) 1 X . At the Court at Osborne House, Isle of Wight, the 4th day o^ February, 1865. The Queen's Most Excellent Majesty. Lord President — Earl of Clarendon, Duke of Somerset, Mr. Massey. Whereas, by an Act of Parliament passed in the Session of Par- liament held ill the Gth and 7th years of Her Majesty's Reign, intituled : " An Act for giving effect to a Treaty between Her *' Majesty and the United States of America for the apprehension •' of cerbin offenders," it was by the 5th section enacted that if by any law or ordinance made by the Local Legislature of any British Colony or Possession abroad, provision should be made for carry- ing into complete effect within such Colony or Possession, the objects of the said recited Act by the substitution of some other enactment in lieu thereof, then it should be competent to Her Ma- jesty, with the advice of Her Privy Council, (if to Her Majesty in Council it should seem meet, but not otherwise,) to suspend the operation within any such Colony or Possession of the said recited Act, so long as such substituted enactment should continue in force there and no longer. And whereas, by an Act passed by the Legislative Council and Assembly of Canada, in the 12th year of the Reign of Her present Majesty, intituled : " An Act for giving better effect Avithin this Province to a Treaty betAveen Her Majesty and the United States of America, for the apprehension and surrender of certain offenders," (which Act was afterwards incorporated in and continued by the 89th chapter of the Consolidated Statutes of Canada, under and by virtue of another Act of the said Legislative Council and Assembly, passed in the 22nd year of Her Majesty's Reign, intituled : " An Act respecting the Consolidated Statutes of Canada)," provision ■was made for carrying into complete effect, Avithin the said Province, the objects of the said first recited Act of Parliament. And whereas, by an Order in Council, made on the 8th day of January, 1850, Her Majesty, by and Avith the advice of Her Privy Council, was pleased to suspend the operation of the said first recited Act in Canada, so long as the substituted enactment con- tained m the said Act of the Legislative Council and Assembly of r;>r>: : SiV h-\ <* 478 Canada, of the 12th year of Her Majesty's Reign, sliould contmue in force and no longer. And whereas, by another Act passed by the said Legislative Council and Assembly in the 24th year of the Reign of Her Ma- jesty, intituled : " An Act to amend chapter 89 of the Consolidated Statutes of Canada, respecting the extradition of fugitive felons from the United States of America," further provision hath been made for carrying into effect within the said Province the objects of the said recited Act of Parliament, by the repeal of certain sec- tions of the said chapter 89 of the said Consolidated Statutes, and by the substitution of other provisions in lieu thereof. And whereas, by the said last mentioned Act, and by the said 89th chapter of the Consolidated Statutes of Canada, as thereby altered and amended, sufficient provision is made for carrying into complete effect within the said Province the objects of the said first recited Act of Parliament. And whereas doubts may exist whether the effect of the said Acts of the said Legislative Council and Assembly subsequent to the 12th year of Her Majesty's Reign may not have been to render the said Order in Council of the 8th day of January, 1850, no longer operative in Canada, and it is expedient that such doubts should be henceforth removed and that the operation within the said Province of the said first recited Act of Parliament shall be and continue suspended so long as the above recited Provincial Acts shall be and continue in force there and no longer. It is therefore ordered and declared by the Queen's Most Excel- lent Majesty, by and with the advice of Her Privy Council, as fol- lows : I. The operation within the said Province of Canada of the said first recited Act of Parliament (if and so far as the same is now in force therein), shall be and continue suspended so long as the said Provincial Acts shall be and continue in force there and no longer. II. Our Governor General of our said Province of Canada shall cause this order to be publicly notified and promulgated in the said Province as soon as conveniently may be after his receipt thereof, and the same shall take effect and come into operation upon and from the day of such public notification and promulgation thereof in our said Province, so as not to invalidate any Act lawfully done in the said Province before the date of such public notification and promulgation. And the Right Honorable Edward Cardwell, one of Her Majes- ty's Principal Secretaries of State, is to give the necessary direc- tions herein accordingly. (Signed,) ARTHUR HELPS. mw'j^r _jjiui .luulllS!! mmmmm 479 liould continue id liC^islativo i of Her Ma- 3 Consolidated "gitive felons on hatli been e the objects f certain sec- Statutes, and bj the said 1-5 as thereby 'arrjin^^ into the said first of the said bsequent to -ve been to aary, 1850, such doubts I within the 'nt shall be Provincial tost Excel- icil, as fol- of the said me is now 5ng as the re and no lada shall I the said t thereof, jpon and 1 thereof ^Hj done tion and f Majes' y direc- LPS. OPINION OF SIR HUGH CAIRNS AND MR. FRANCIS REILLY. CASE FROM CANADA FOR THE CONSIDERATION OF COUNSEL. Upon a demand made by the Government of the United States for the extradition of Bennett 11. Young and four others on a charge of having robbed one Samuel Breck at St. Albans, in the State of Vermont, on the 19th day of October last, certain evi- dence has been taken which is to be found in the printed report of the proceedings from page 129 to page 220 inclusive. The opinion of Counsel is requested upon the following questions arising out of the evidence : Question. — Does the evidence sufficiently establish that on the 19th of October last, Bennett II. Young was a commissioned officer in the army of the Confederate States, and that the other prisoners were soldiers in that army, and were then under his command ? Answer. — We are of opinion that the evidence sufficiently esta- blishes the points referred to in this question. Question. — In what capacity does it appear from the evidence that he and his party acted on that day at St. Albans ? Answe7\ — We are of opinion that it appears from the evidence they acted in a belligerent character. Question. — Under the circumstances proved and under the laws of war, had the prisoners the right of taking Breck's money, as the evidence shows they did (pp. 181, 2, 3, 4, 9, 141, 2) ? Anstve?'. — Though in the conduct of war on land the capture by the officers and soldiers of one belligerent, of the private property of subjects of the other belligerent, is not often, in ordinary crises, avowedly practised at the present day, it is yet legitimate. We are therefore of opinion that this question must be answered in the affirmative. Question. — Is the character of the prisoners' acts at St. Albans in any respect affected by the facts proved in relation to Lieutenant Young's proceedings in Canada, or to those of any of his party ; or by their having passed through Canada })revious to the attack ? Ansivc7'. — We are of opinion that any such facts as those refer- red to in this question cannot affect tlie character of the prisoners' acts at St. Albans. Question. — Does the taking of Breck's money under the circum- stance proved, constitute the crime of robbery within the meaning of the Ashburton Treaty ? Answer. — We are of opinion that the facts proved do not con- stitute the crime of robbery within the meaning of the Extradition Treaty. / 480 4M ,*■■'' '■ »::;iiuS, m The acts of the prisoners derive their character in contemplation of law, from the animus, the intent of the actors. Their intent having been, as the evidence clearly shows, not colorably, but really, to exercise rights vested in them as servants of a belligerent Govern- ment, their acts are not to be tried by the standard of munici- pal law. This principle is applied in the decision of the Supreme Court of the United States in The United States v. Palmer, 3 Wheaton Rep. 610, where, with reference to the case " when a civil war rages in a foreign nation, one part of which separates itself from the old established Government, and erects itself into a distinct Government," the Court laid down the rule, that " if the Govern- ment of the Union remains neutral, but recognizes the existence of a civil war, the Courts of the Union cannot consider as criminal those acts of hostility which v/ar authorises, and which the ncAv Gov- ernment may direct against its enemy." And to the same effect is the dictum of one of the Judges of the Court of Queen's Bench in the recent case of the Gerity [where the prisoners had seized a ship at sea, saying they were acting for the Confederate Go\jrnment] " though the Confederate States are not recognised as independent, they are recognized as a belligerent power, and there can be no doubt that parties acting in their behalf would not be criminally responsible" (12 Week. Rep. 863). (Signed) Lincoln's Inn, 22nd March, 1865. H. W. CAIRNS, FRANS. REIlLY. i^^1:S, ■]. :i%. ,. )ntemplation of r intent having , but really, to ;erent Govern- ard of munici- ^!&44^ii!fifei^*'i-- ??::". -.;i: . reme Court of er, 3 Wheaton m a civil war ites itself from nto a distinct f the Govern- e existence of 5r as criminal . the new Gov- Judges of the Gerity [where ^ere acting for rate States are s a belligerent in their behalf I. 863). :)AIRNS, 5. REIJ.LY.