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Tha foilowing diegrams iliuatrata the method: V ■ reproduit eh^n aaul.cliché. il est filmé è R!«rtir de l'engle supérieur gauche, de geuche è droite, et de haut an baa. an prenent le nombre d'images nécessaire. Les diegrammes suivants illustrant la méthode. X 1 2 ^'' • • 1 ». ,vi V 2 • 3 t 1 ^.2 •-■■■■3 4- 5 6 i \- -'■- ' •^^r V T. A LÏEDT.B ÏNVESTigAlP^ J&R TfiEIE ACTB AT ST. ALBAN8, VT., Oh tbi 19th 0«TOpm, 1884. Vi" *-*t^ï BBTKO A COMPLTÎTE AND iHITHJCÎlHC KTOOlfr OF ALL Ï*R 1»^). 1 • '■>' i 1 ^'■à^^'.iù-'i,^!:^^ '4 pA*UV"^ki &V. j '*»;, i .V^ ^ * .r *_^ ■vt,^'/îÈ^(*.*X2is»^ . \ ^ Ml .r, „ r f , ■ A i li f A< h^ S LI BBl * ♦" «t THE ST. ALBANS KAID; i ■ ■ i OR, INVESTIGATION INTO TIIE CHARGES AOAINST LIEUT. BENNETT H. YOUNG AND COMMAND, FOR THEIR ACTS AT ST. ALBANS, VT., On thb 19th OcTOBin, 18Gt. BEING A COMPLETE AND AUTHBNTIC REPORT DP ALL TIIE PRO- CEBDINGS ON THE DEMAND OF TIIE UNITED STATES FOR THEIR EXTRADITION, l'NDER TIIE ASIIBURTOX TREATY. BEFORE JUDGE COURSOL, J.S.P., AMD THI ' HON. MR. JUSTICE SMITII, J.S.C li \ ■ -, Il — rtr WlTH Tn« Aroomkxt» op Cousbki. asd the Opisioks OP THE .TUDÛF.8 nKVISKP BT TnKMSKLVK». OOMPILED BY L. N. BENJAMIN, B.C.L. 1865. fe,' il-- % ■% 4û^U PREFACE. The magnitude of the intercste inyolyed in the St. Albans Case, and the importance of the questions which arMedûnHg its-d»- cussion, havc appearod to me such as to justify the ptiblication of a complète report of the proceedings ; and in preparmg it accord- ingly, I hâve l^eeu indebted to' the eminent Counsel engaged on both sides for such-a revision of the reports of their argumenta, as enables me to be certain of their substantiàl correetness. Before going to press, documents arrivcd from England which appeared to sustain the corrcctnoss of two of the/ most important of the judgmentg rendered j^e 43aso. . I have^ therofore, added them as an appendix. f ^. ■ 1 fi,; ft ' \ L. N. B. Montréal, 17th ^pril, 1865. » i • '1 --K "^ \: r 'If u < ' '■„ ,^ W ' \ ^ KHRATUll. Page 1, line 8, ingteaJcf " witb felony," road <• with suapicio^ of felony." .iV.. .' ':■■] ■■ \ V N >T. AlyBAN'S RAJd! Beforo Mr. Justice Badqley PROVINCE OP CANADA ) ^x ** DutrictofMo:i;^ai '\ POLICE OFFICE. •. : To the keoper of the-Common Gaol of the said District, greetina •• 4>«in« ^'^^. »»'« i>i8tnct, laborer, stana's charged upon oath with ^l2; • ?''' *'' *'^'''«^«^« toytuthorize aJ comÏÏnd vou t receive into your custodjr the bodf of ^he said VV. il HutcCon andhim safely keep for examination. ^ «utcùinson, daf oroTt^Knn'';. ^"^ seal at'Montreal, thi« twenty-seventh ^ . . (Signed) J. p. SEXTON, i . Recorder. ,j POLICE OFFICE. • PROVINCE OP CANADA, ). DvitrUt of Montréal, CitiT > 0/ Montréal. ) of wSif ^*'? • ^'^^t. "^°i «<>'»PÏa'°t of Guillaume Lainothe; of the citv of Mbntreal, m the District of Montréal, Esquire, ciùef of^lS7 ethThSrrd'^' thistwenl-seventh day^f âcto^fX lÏÏÏÏ eigût hundrôd and sixty-îour, at the PolicA Offi*.*, in ♦i.r^* r £S:'i'ij'°^. ?%»"Wed kec„rfe^n*ld V^ t Z^ «,« J^ • 1? °f Montreal, between tté-houre of six and eieht of /^l «SSSf J1 HrHutchmsôn, upon suspicion of his ha^ff^m- IJnited States of Amenca. Ûpon the person of the said HutclT - ^ '? \ ' ^ • . • ' son, who 18 now a pnsoner in my cqstody, I found aftor his said arrest ten thousand dollars of the Franklin County bank bills, said bank bemg situate in St. Albans, in the State of Vermont, one of the Uûited States of America, and two loaded revolvers. And I hâve reason to believe that the said sum of ten thousand dollars was feloniously stolen by the said Hutchinson, or by others with whom he was acting in concert. ^ Wherefore I pray for justice, and hâve signed GUILLAUME LAMOTHE, ' ■ - ^ '■ Chief of Police. Swornbefore me, at Montréal, this ) 27th October, 1864. j J. P. Sexton, Recorder. * Mr. Kei-r pipened two principal grounds of objection to the com- mitment. . 1. That it coutained no charge of any offence for which the priaoner could be committed ; " suspicion of felony" not being such A charge. 2. That the warrant of commitment contained no limit as to the time dnring which the prisoner was to remain in confinement : thougfa the time for which he could be remanded was ezprenly limited by the statute ; and though the text writers laid it down as a rule Aat the warrant should déclare the limit ; and though the form contained in the schedule to tiie statute, and the forms given in the books were ail so framed as to limit the time. /Mr. Abbott, Q. C, followed on the same side. The fact that the information contained no statement that war- ranted a suspicion of felony under the law of Canada, was also insisted on. ftMr. Johnson, Q. C, on behalf of the Crown, opposcd the appli- cation, on the ground that the warrant was sufficient, and Âat the information disdosed a sufficient ground for the imprisonment, and further on the ground that being remanded for examination only the^roceedipgs against the prisoner should not be interfered with. Mr.I>w Un, ou behalf of Ue U . S. authorities, folloWed on the 8ame4aide. ; His Hjonor took time to consider; and àt 2'P. M. the saine daj, j^ûenà the fdlowing judgment : — IWwana&t of «ommitment charges the prisoner mûrnuptèùm of ftUn^jmà oràetB his commitment /or examinatioti. ObjétftiooiB are .madeio botb tbe,geôenility of the charge and the tinliiàited rëniand. Jfow it ia tnot Àécm» r>9 thi^t tho nflff'nftfl f^^ft^l]<^ be descrîfeed wifli- Ihè nicëty ïndT ieSEÎmcarprecision of an indictment, bat the prisoner ahoold be charged with some le^ly dèfiued and weU known 4.. kiH.ii^Ji.Ji^Jf^'Ù y^O'^ <, 8 it « not «efficient sfanpl/to designateTe S^ b^th^naLTof ihe elaas of «ffenoes to which the mairiatrate rnav iLZ. ^ -f the ab8«je of any stetutor^ provisions prescribiM ite foW^^ contents does not eufficiently state tho offenoe bv fîm^i! ?^ ling it by^the class of crime! U> ^uT C^rJ^SVS: may oonflider it to belong ; ifc should state tb« fon™»«>°. i nuiup. li^oarfçgj to iay^nHJWnpôn ans jnlpable «iror. hese two objections toe formai against the fiwe of the commit- iA^ I iA^i»«li^ ment, and, to my mind, render it bad and defective. I hâve con- siderjd this comiintment simply as any other, issued in the cour^ ^l'^^^I^^^^i^.^^oreour magistrates, upon commitaie^ for local otfences cogmzable bv çrovincial magistnitea und^Ae Wovimona of our loca^ laws, an(f àould not hâve advanced beyond the comnutment itself but for the urgency of the couasel agS the pnsoner in directing mj attention to tte information, wiâ the View of Bupplementmg ^e i^rmaJ defecte of the commitmént by Se other ments of the mformation. This latter document inforS the mag«teite tiiat the hiformant,>e poKce officer, had amsSf the pnsoner on suspicioA of having committed a felony at St. Albans Kl the Stete of Vennont, one of the U. S. of AmeVica, ic ffî document is exceedmgW loose and defective, and does not iustify the charge set put m the commitmént, which in this case d^d not issue j meromotu of the magistrate, but upon this information. Now the law clearly requu^s that the commitmént shaU stat^ some - gyd cause certem, showing substantially a criminal matter over which the committmg magistrate has jurisdiction, and for which the former ma^^ be le^y committed, id that crJminaJ maTter must be stated witii certainty to distinguish it from otheTXn^es Ce of this can be extracted from the information. Viewed as infoZa! ùon pf a crune committed m this Province, iè wants every légal in- grédient to give it eflèct; taken as the information of a?rime committed m the United States, it is plainly one /orirWch the commitbng magiseat corpus, and as certainly, uDon a defèotivA coûtaient IJe the presSTSe allowance of Se ÎS ca^ot W lem^T^ refufled. >it granted wtumable instanter. Tbs folTowing ia 4he^ ffleter^g fetur& te corpus: the wrifr^ of Aa*f d» 5 PROVINCE ÛF CANADA, > Dùtriet of Montréal. J ' to wit, on the 27th and SoK™ «f^Xw „™1™ ^'À'^?' »«nei,™oom4w^nt. tte^ïd Sro?-ot »r£S:T PHOVINCBOF CANADA,)" ^^^^„ ^ Dittrictof Montréal. \ POLICE OFFICE. . To the keeper of the Common Gaol of the said District ^^t [^•«J S«\ T'.'"^ ^™«°^ H. Hutchinson, of tL 2S of oatti mth suspicion of felony : Thèse are, therefore to fuflioSïï S'i^uZV'^tr^'^^ 'T.'^'""' cûstod/re'rodro;'s said WUham H. Hutchmson and him safely keeb for exammatîmr Given under my hand and seal at Montréal, this Iwen^rventh day of October, one thousand eight hundred jiid rixtv fon^i^îi twenty-eighth year of Her Majes^s re^ ««tj-four, in the (Signed)* J. p. SEXTON, Recorder. POLICE OFFICE. PROVINCE OF CANADA, District 0/ Montréal. ^'*'i2SÎÎL'^*^?M''^'^^^««°^ other peace officers in the Montre^^^^^ftini : WwSL wSlî a'!? f^' ^' i^'^^* «^ town of St Alba^ in ZXÏT^^ Hutchmson, late of the mmmmm sire ireapoù aiû^ iSSÎmmi to^Ja^ «wi^ifttïcerlaiii offen- «ne M-,. Wen. BeKf^' fX»!?Sl ^Sfll^ïliCÎS l" «ih4«J ^w, .A -..v, .('■■ bin,the8aidMarou8 Wells Beardsley, in bodily fear and danser mtU> the amount of «eventy-six thousand doflare cnrrent mLv of ihe said United States of America, und of the valuerf LvS su thousa^d doUMs^ current money rforesaid, of ^rrl^i «^ property of the Pranklmon thé ^ Given under my hand and séal, this twenty-ninth day of October in he year^of our Lord one thousand eight h^mdredZ| Lty5^^^^^^ at the said city of Montareal, m the District aforesaid. ^ ' (Signed) CHAS. J. COUIISOL, J. S. P. And that this is the cause and the only canse of the canture comimteent and détention of the said William H nïtehZn b' net Majesty's Gaol aforesaid, the body of which said William H AtSZd i^"' -r TZ *« t7 writ it is commanded me SSJ • Îu*^" ^^T.^^ ^*^*' ^ twenty-ninth day of tho^l'^n ' ^«"<7-««»î*»» y«»r of Her Majesty'Jreign, ÏÏJ in the yeaçofPur lK>rd one thoosMid eight himdlîed^md 8&.foar (Signed) LOUIS PAYETTB, Gioler. .«CM nafl Dowwnade^oïit-^d time-tiU tho*»owiïfr^ ffwted te take commumcation of it. On the followSg day, fc JODQï Badolit, in Chambers, »u»y, ueiore JETon. Mr. Abbott, Q. C, on behalf of — Hutchinson, sjfcated that the return which now appeared before the Judge contained npt onljr the original commitment of the Becorder, but also a subséquent one; that the argument respectmg the Recorder's commitment having disclosed tiie defects, — the second wais prepared with the vieW of supplementing the first. The «pommitment of the Recorder was rendered inadéquate by the omission to state the daj, the place and the time when the prisoner should be brought up for examina- tion. The attempt to cure the defect in jtke other warrant consisted in placing at the end of the despHption of the statute in the warrant the words " on the second dav of Novomber next," making the commitment read to the effect tiiat the jailer was ordered to return the prisoner for exanùnation on that day according>) the tenus of the statute passed for such and such purposes, on the second of November. As the return set forth the second commitment, it was neoessarj. to show now — and he was readj to do so, that ît was insoflScient. The course of proceedings adoptéd in the subterraneah régions of the police office, was very extraordinarj, for as fast as one commitment was found fault with and iits on the pom^ of being quashed by his Honor the Judge, another was submitted in order that the accused might be kept in jail fh)m day to day, tiU the leamed gentlemen who drew up the first commitment shoidd leam from the prisoiner's counsel how to prépare one in a légal and yalid maoner. As long as the clerk of the crown, acting apparently in ihe capacity of clerk of the magistrate, continued to fiirnish affi- davits and commitments, he should be careful how he managed the business, and not illegaHy infringo the liberty of individuals. The Judge, however, would doubtless take good care that personal free- dom should not suSèr from any contravention or overstraining of the ^ iaw. Mr. Carter objected to being styled clerk of the magistrate. He was not such, and had never acted in thaf capacity. Son. Mr. Abbott .observed that ail he could say was this, that when he arrived at St Johns, as counsel for the prisoners, he found the leaJmed gentleman who was clerk of the crown for the District of Montréal, dràwiqg up informations, preparin^ commitments, and actipg in the capacity of ma^strate's clerk m ue District of Iber- villéil Thèse were thé duties of a magistrate's clerk, not those of clerk of the crown for the tHstrict of Montréal. ■*' Mr. Carter said that if the leamed counsel wanted to know in what capacifrjr he acted, he would tell that gentleman. He would tell Him that ne received a telegram from Hon. Mr. Cartier, desiring him to go^ St. Jphns toasnst Judge Oourgol iff carrying on this investigation. Son. Mr. Abbott said that whether the leamed gentleman had . i < i Lt^^Ui. wLi, * . h4 ' ^ ' . . ^ <.^ï v. 8 personsZLT^STte^n?» f?°'P*'°^ *^^?""* *« extradition of of the coufltnr under S Dro^.tt^S^^ f ''?^« ^^ ^^« and it waa a very Vtra^^e mK ? ^'^ ^î*^ P^*''®^ thomselves; ment to séhd sXXffiiaVa?^^^^^ .T ^'Z^* f ^'^^ S^^^"^' for any such purD^ îS î.?^ ^^ *^^ ^"ï«« «f' *I»e"- offices, X Mr. Séxton was quSd^lD tha tt .tTT^^ft'^^de out by ditioMearly poiïted out Z7ol^:\^t T^^eST'^TZîS^ was bound, on information beins laid beforeSi^ Tf<,„ A magistrate f^r the arro8t of the partj aS?d ald L^V^ T® ^? '"^'^^ eiamination. The m^L^art^n hSl^IL V"" ^'^"«^*. "P ^«'• factfl, and hear the eviSe wÏÏ ;?lr # î ^ ^"""^^ ^*<» *« him io send the acc^ed T S'^fc ^eSS^^Z' would authorize terms of the statute, and to bVriv^n L „n t)^* "^"T^"?* *° **« nor-ffeneral's warranf Ti.,f 1^ ^?P ?" *"® ^^^« of the gover- simply /warrant send^rtïto W^^^^^^^ i* ^«« before the proper authoriiy^ We'Jr^tlff T^^^^ ^"^"«^^^ this case the terms of t^ 8tah,2> ^«7 ^T'^Â*^ ^*^- ^ magistrate hadexTededhLj^cUctatand^^'^^^^T^ ^^' fsolmyn^. TheCer^tefCnw^nt'rSo^r! sdpposmg the magistrate had nower to^^mT!?*? ^^^"^ *^*' should hâve been rectedTl>S.i^>^ fôr exammation, when he veyed iSe idelStL^f ^ *^ of November," 3ly con- o^ZtZyThey^trr!^^^ T r^' r^ *'«'"« ^*o forcJonly pnsoner Wi thT saZ anHhtn' ' ""^ S^ «ommitment of thJ ^ovembor, -. were . mterwlâïèd at tR^ An,r\>rîi:. -.»-^ » 1 he Judgp of the pejyje came forward and said he hak Ho désire • to. hâve counsel appear on his behalf; for if any thinri had to be said respectmg the return he could say it himself; S "«*««> do ♦K. « f '*'* **•? ^® ^^ ,"*** prepared to discuss the vaUdity of the secondcommitment, as he had not had sufficient notice. ^.5^K i! ^^^".'tft *^?' **''• ^«^^ ^ présent on Satur- - Ira request wss granted. He had had ample time. 1 ■* *»,«.''**'' B^oi-BY intimated he would complète the hearing of ine case at two oclock. • o ^* i ii'«à«ids- J'ïrf ' k, . (!*. ' ■■l I 10 Ai two o'clock before His Honor Jddgb Badgley, »a» \S^''!.ï^^®*^'*/'*^° pri8oner,8aid that the whole question waa, wùôther the commitment set out io the return of the iailer ' Sf * "S T '''■ '^^- '^^^ ^«« *^® °°Jy q"«8tion on whicÊ His ■nonor had to pronoimce. Mr. Deolin said he waa^ not prepared to argue the validity of the warrant or commitment to^ày, and as far aa was in his power he would protest agàinst this mode of dealing with a question of this imprtaqce. Before the second warrant could be taken up the pnsoner s counsel must come before His Honor with a second péti- tion for a wnt oîhabea» corpus. ^ Mr. Johmon on behalf of the Crown, said he did not see whv the Judge should grant an order for a discharge, when there waa no pétition. o > cio nao. « A ST"" **^^^«^ *^a* it ^M PÏaûi ©nough the haheas corpm and not «le pétition c<^n8tituted the record. The appUcation made by Mr. Devlin, m the mterest of various parties, to havc time to argue the second commitment involved waa deserving of conaidera- ùon, for the questions which might°arise upon it a very larce branch of what might be oaUed international law. This was a matter of very great importance, and he would suggest to the counsel on aU sides, for the purpoàfi of avofeling further discussion, tnat the second commitment shoald ûol now be taken up The whole proceeding had been very irregular. The man might hâve been discharged on the first warrant, and before he left âe room been arrested on the second, but instead of this both warrante had been nuxed up m a very irregular manner. The zeal of the p^ose- cujors had outrun theu: discrétion, and the whole thing was a com- plète senes of blunders from first to last, and this evidently to make confosion. It would hâve been bette* in order to simplifj the thmg if the first warrant had been disposed of, and the second commitment could then hâve come up substantiaUy, ani the ques- tions mvolved been fairly discussed. He would suggest t? the ^*^ÏS;rr- °-\f^! ^ tet j«dgm*nt go on the fi«t warrant, reservmg tiieir nght U) take substantial issue on the second. Jim. Mr. Abbott obeerved that to-morrow was a hoUday, and the nnsoner would be kept two days in jaU, during which time any number of apphcations might be made against him. The obiect of pnsoiwr B counsel was to hâve him released from Ulegal détention . Judge Badgley— The whole thing that cornes up now is the suffi- ciency or insufficiencyof the. return; and the question cornes up on fomalor technical gromk. The Judge only has to look oï ^^^4 ??^^ ^ '^ - ^* '^ bear s^ut jLBu gc ieût commit- wirt. -rttmtitdoea bfearout a sufficTent commitment to enabir ^ • t ^^" *^ priaoner for the présent. That return i» 4i*.i 11 After some further discussion the warraut issued by the Reoordor was pronounced by the Court to be illégal, nuU and void; and Frida^ waa appointed for hearin^ the application for the diaoharge of the prifloner, from the warrant jssued by the Judge of the sessions of the peace. The prisoner remains in jail in the meantime. I" COUBT OP QUEEN'S BENCH. > "*""' °' Writof^b.» Cdrpu. ." In Chatnbtn. C (Before Jastices Atlv», Hordilit and ) Dbumhond.) Wbdnbsday, Nov. 2nd, 1864. ^is moming the Court was crowded, to hear the argument and décision on motions for a writ of habeas corpm in behalf of the St, Albans raiders, at présent imprisoned in the Montréal jail. Hon. Mr. Abbott, Q. C. ; Mr. Laflanune, Q. C. ; and Mr. Kerr wppeared for the prisoners. Mr. Develin, representmg the United Stfttes Government, aasociated with Hon. Mr. Edtoonds, of Ver- mont. Messrs. Johnson, Q. C, and Carter, Q. C, appeàred for the Crown. Messrs. E A. Sowles and Edson were présent in tiie interest of the St. Albans banks robbed. ^f' ^^'^ pfeiênledv a pétition for a writ of hdbeaa corpu» in behalf/W Samuel Eugeite Lackey and thirteen other pi^oners conç6med in tiie St. Albans raid. Mr. Justice Mondelet. — Are ail charged with the same offences ? Mr. Kerr. — ^Yes. Judge Monâdet. — ^Tith spécifie offences ? Mr. Kerr— One offénce is murder committed within thé jurisdic- tion of the United States, and the other robbery. The prinoiples whiçh would apply to those commitments are gênerai and applicable to the whole. Mr. Omrter said he was clerk of the crown, and had a right to speak on the présent occasion. He would beg to infonn the Court that this was not a final commitment, but one for examinatiaa, and that the prisMierls were now before the Judge of the sessions, who was about ffoing on with the examination of witnesaes and other requisite Srocedm^. The argument for a writ of habeà» corpu» was actually da^g tiie argument about to take place before the Judge of the sessions. -^ •J'iJ»'* -^^twn—Asked for the pétition, which was handed to and. ^^M^' % %n.M k< w i ^ja gth ere.any final co mm itmflnt? MrTKèrr.—. Jkdge Ayîmn.—TiizX is the MUr. Kerr asked to be hei the^^ of tilie matter. ,." S-rltij ii*-. ' % ^«Ni^v 12 ' ii^^ltï3.K?to*Z-?''-'n*° "H '"»'■»« «•- «ilmen. for trial, îl. deScetid^S"SL%;'f^' " "^^ this caae were prooerlv onmmittirif ■ ?. " ""^ pnsonere in interfère. The^mK wStll f T?^**'??' ^^^ «<''J<ï »<>* cause, it becomes neceœarT orTf^^Ki T^*?^ *î^®^ reaaonable or forther examinaHnf!^?' ^f ^*^^I« *<> defer t^e examination. justiceTreCTotllc^X'J^^^^^^^ the justice J^ upon his or thpir woll^! accusea i^ppears, or has been bK)uffh(i.«D a?^used, for sùch El T^' î"^ *^* ^ *^°*"' ^'"'^^ «»« pW rem.ndi»gpri^„e«fo" !S;^'y ?'™'»o«ej™ficea..ri2t of for ever, 5i7rrn;;2l!r* ^T*^' **"* °^* *<> ^^«ep them there: tune. Thèse pnsoners were cpmmitted for ex^iàatiJLevJS "-"■M 18 days f go, and bafïï^ been brou^ht up for examination. They ^JSLîS il^n? '°T^j'"i/?îL**^tT* *^*°*y y«^' «^^er d P ♦ XT?^u ^u °>*««*^^ ^«i not exeroised his disoretion r Jj %.{»°»« «îew pnéonors m,ght bekept in îaU. InsteadTsayine them up\ Ahey were committed for an indefinite period Thev mi^t hâve been brought up in the interval that had eWd eince their commitment butle had no right td commit tham fora longer penod man eight days. v '""ftc» \^dge ^lmn.—The commitment èears date the 27th of October JudgeDrummond.-'Ihe eight days hâve not expired. Thè magistoite remanded from day to dav m gênerai, but ^party ae- gneved, -when the eight days expired, if no«»previouBly brought up, mi^t appear aï,d 8a;r that the magistrate had tfxceedid hisser! If the coimsel wéjre m thàt position he could understand it KMr. 45io«.-Qf course, I would be in àmuch stronger position. T6 be sure it is au ^lementery principle that the warrtntW com- mitment must show t^e jurisdiction on the face of it ; but this is not a warrant of remand lù conformity wîth the statute. By that same warrant^^hich sends a prisoner to èonfinement, the jailer is ordered Ti^«T£i%*r°-^v.f.°*' t^y^ified in the commitment. The intei&on «J «je Jaw is^lam, that by the warrant which commits bT^tfled > confine/ to somo perieSSl S.L«^^ i® ^}v ^r*'' K*^g this'statute altogSroutofthe question, under the m passed to f^ciUtate the exécution of the Ash- r H "O f i I ! I f I I ^ , u\. 14 ,Ai I t .kuî'Kf •*l"»™wiJ.— B 9» magiatrato dou not nime Uie d.»!,. iS'PicZT"' *" *° '^ '"*' ""• "- «^^ "«P"'» "t" ô"f Jitrf^e MotukkL—lî that magistrate exceedahia iuriadû^H^i AeremuBt be a remedy ; if he coSimts an aot oZDZik^wfî be restramed. B,^ the po^r of remandi^ doesS Tven T1 lir* .•?, ™®^® o«" •>« no exceas of jurisdkjtion. "V""™" ^'■•^«^•-matrsaidbeforeajScfwpeatb-.thataniaimb^fn haa no power to commit a man for an unliSted tim? îuS!^t commite a pnaoner for a longer neriôd than the law ^oJJTÙ entitled at once, without waiti»«^fbr the emirah*»» aP i?^ ; ' . what extent of jnnadiction he ttaomea to himaelf. If the^aotT done under the atatute, he camiot remand for a longer neri^fhîn the tane proTidéd for bj (jxe statut. I mei^ly 3 ,S5^!f f^" a^utSSr.r ""^ '^''-^'^^^ conaidera^f alïïlSi;^^ Jlfr. iTerr.— The firat point to be determined ia, whethôr uniÏAr r^r^'^T ^T".**^ '^'^ a^inandfor fuXeSST^on a wnt can laaue for a habea» corpuê or not î dt^h tO^ a mitment being muahd and bad, the rieht to annliSS^ ^? r ^„f^^d^notexiat ^admit fi wheÏÏP^^^* '' mitment prexanmation ia gool^n ita fece, no wrifâ «*J^^e ; bot irhm auch a warrant ia bad on fcfiir al«iî nf i^iH^T^."^ '^«- I *oald aàk ia there no dilfewnce betwLn ijMiû np at* stated time, as laid down in the atatute ?' If we^ ^ ^ ^^i^^ thia allégation we ahaU be tofd that pfSnîS ntt^B^torenonghttoawritofAd6«à»?^ï f tiie^wn oamejbrward and aaid, «'iheae men JÏÏS^ ^^' *°«" hftve otight to Lord one thonsaurèight hundred ând sixty-S^ «le year ^ oue= ' (Signed) CHARLES J. COURSOL, • • Judge of the Sessions of the Peace. 17 WARRANT ISSUED IN VERMONT. ! s.J%^rl7n ^^?^l l'^'^T ?^ *^« •^"«^^««^ of tl>« Pei^^e within ^helIkT ^Sr.V ^r*»,klm,in the State of Vermont, comea ^v^J^^-^'^^T^^f ^"^^^^ '"^^^ State of VerTonV^d St^C r/'r'^'"^^^ a^dipnhis oath of office/cm plaint paakes that Squire OVnler Teavis, Alamanda Pooe Bruce Scott, Caîeb McDowall Wallftce, James Alexander DqW jS Mc^rortj, Samuel SimpsonjGregg, Dudley Moore, iSoTT 5st X' f T'* Eugène iackey, and ThLas Bro'nsdon cl^ of St Albans aforesaid, with jforoe and arms at St. Albans afore T^ ""IV o°^«.^eteenihdayof October in the yeïofo^ n„t. fît "^of'^Tiu'^^î ^'^°? *»d kiown and called bythf name of the St. Albans bank, în ^nd upOn one Cvrus Newton Bishop he the ajd Bishop the;e and then'l>eing theSr o?^S vt^nnfn'î '^^•?'.^^'."^^ P^'^^ «^ «od and the sL of C™ N.^Bishop m bodilj fgar and danger of his ife in the bjmk building aforesaid, there and then felonioîslj did putVand one thm- Ck S "ZT^'^ "^'^- '^'^ ^"'« ^««<ï ^J tie SY Alt V^r^Z ^^l^^'^ë ^ mcorporated bank, in the said State of Vermont, and the property of the said bank, ind of the denïïiî: eld^lrS -^ ^'S Jot^r»^' onethousandbUlscomSy ealled bank biUs issued by said bank, and of the property of S t^k^""^ Ti,f *^' dénomination and value ottty doUws two thousand bills oommonly called bank bills issued b/ the sS S îî^fi^Vn^"^^ 'i 4^^^^' ««d «f *»^« denomiition and hîiv i?n "^^ .T T^' ^^^ ^^«'«'«d biUa oommonly cXd v^« n?^ TS'* ^^ ?" "^^ ^"^^ "^^ ^t *he denomina^o^ tod va ue of one doUar each ; ten thousand bUls* commonly cXd bïïk biUs issued by the said bank, and the property of saS bïï anK the value and denommation of two doEaiTeaJh îZ tted bi^ c«nly cafled bank bills, issued byand the priSy Twid baSk dred pièces of silver money commody caUed half doUars each «f îl dénégation and valuJ of fifty oVte ^aoroiuSïïrmoîïy ot the Umted States, and the propertj of said bai, fr^ the wion the mthewBd Jaajfingprro^lëïïëFâ^idBrftM-d, a»in and »vay 37 — ~7 -r- "-^"««««^g, M snon teuer à4 afbrésald;. ^n tîiere felomously and violentlv did rob, 8teal7takeVSd'c«S , contrary to form, force, U effect of statut^ of sid StateS B .#- p-i'-* W-ïS^-Ji: '^ug^ rf-> ' j , rjjjt eu aA'éJT .t vt - 18 such caae made and provided, and against the peace and dignity oT Sol CI OvfttiO* CHELLIS S. SAFFORD, Tir: \n %x -„ Grand Juror. „ Witneêses, Cyrus-W. Bishop and others. STATB OP VERMONT, ) St. Albans, Octobër the twentieth, in the lyankUn County, ss. J year of our Lord one thousand eight hon- hundred and aixty-four. The above complaint exhibited to me, LEONARD GILMAN, JmUce of the Peace. STATB OF VERMONT, | To any Sheriff or Constable in the State, l!Von*«n County, SS. j Greeting : — Bv the authority of the State of Vennont, yoi» are hereby com-^*. manded to apprehend the bodies of the said Samu^ Eugène liackey, Thomas Bronsdon Collins, Squire Turner Teavis, Alamanda Pope Bruce, Mm-cus Spurr, WilUam H. ffutehinson, Charles Moore bwager, Bennett H. Young, George Scott, Caleb McDowalI Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simp- son Gregg, and Dudley Moore, or either of them, and by whatever name they or either of them may be known or caDed, and them hâve before me at the office of the Sheriff in St. Albans aforesaid, there and then to answer unto the foregoing complaint, and to be further dealt with according to law. Fail not, but due service and retum make. Dated at St. Albans, in the County of Franklm, this twen- tieth dav of October, in the year of-our Lord one thousand eisht hundred and sixty-four. LEONARD GILMAN, , Justice of the Peace, STATB ^P VERMONT. j St. Albans, October twentieth, in the year lyansdin County, SS. i of our Lord one thousand eight hundred and sixty-four. I hereby certify the above to be true copies of the complaint» made to me, and my account issued thereon. r- , _, , LEONARD GILMAN, [5 cent stamp.] j^^i^e ofthe Pe^e. STATB OP VERMONT, j j, Joseph H. Bramerd, clerk ofthe county lyankiin County. \ Court of the county of Franklin, in the Btate ot Vennont, which Court is a common law Court of record, do hereby certify that Léonard Gilman, Esq., was on the twentieth day of Uctober, m the year of our Lord one thousand eight hundred and sixty-four, and stdl is aJustice of the Pe ace in and fo r the «àd "FP™^ J^^îmï^ r.e -^ GJman, and that M faith and crédit fShTto KT ^ "ît^ officiai acte of Baid Gihnan. ^ ^^ 8»ven to the seal oftiie ÇountyCourt oftheCounty of F«ini! Lfeeal of ce.] at St. AlbjM, in said County of Praiiklin, & twenty-first day of October, b the year of S Lord one thousand eight hundred^and rixtj^ [Stampôcte.] "^; JOSEPH H. BRAINERD, C?^;t pne «f the Judge» of the Suprem" CWtTf tt» ISS °î v*™"°'' «jdcluef J„dJ „f *e Çou4 » «ùd ; th.t I »m weU acqiinted wM. MdTS-ll.^'*^'*'*- toe of the «ùd jZph aBr^^ «d (te .iJl .« «TrS."«^ of FrutUn afwS "" ^"°''' ""'°8 '""^ «nd f«r the counlj înlMlimonywhereoflhiTehereunlosetmThimd «K!t iii, u. the Coanty of IVmkBn «foreeud, thie ZnlSd^^nl'T' m the ye» of «„Lord one tho„«id ei^ ÎŒ tV4^^'' ^ cerfafy t h at t h e fefegoing docu. - theUnit^rSteteTrirrsStS^s^rth!*^^ ®?*"'*'^^ of attatched to said UficlVŒ^^tîfaS: ^gtuLe?^^ UNITED STATES OP AMERICA, Stàti or YniMORT, ExecuHm DepartmttU. icat fefeaS^tJîW,»-' '-tf-^o^ ^&*'llà'*'' *-^ Ji M-tp- , / 20 that said officoM respective^ hold and exercise the offices which they m and by said certificates purport to hold and exercise ; and that the seal of the 8ai4 County Court of the aforesaid Counfy of Franklin thereon, is geàuine, and that foll faith and crédit ought to be given to said doctafaents and certificates. In witibess whereof I hâve cansed the seal of said ta' ^ l'a ®***® *° ^ hereto attached, and havo affixed [Seal of State of nay signature hereto, at Mon^lier, this thirty- Vermont.] first day of Oçtober, m the year of our Lord f one thousand eigbt hundred and sixty-four. [5 cent stamp.] J. GREGORY SMITH. By His Excellency the Govemor, Attest, G. W. Bailby, Jun., Secretary of State. Endorsed.- / ; STATE Squieb Turnke Tbavis, Alamanda Popb Broob, Maeous Spure, Chablbs Moobb Swaqbr, William H. Hdtchïkson, Bbnnbtt h. Younq, Gborge Scott, '^ Rled, 9th Nov., 1864. C.J.C., J.StP OF VBRMONT, vertuê '*"' Calbb McDowall Wallacb, Jambs Albxanbbr Dott, Samuel Simpson Gebog^ Dudlby Moorb, .Samubl Eugbnb Lackbt. Thomas Bronsdon Colliks. \ ^-!;\ (.■■'■) TAKBN HT TÉB ST. ALBAFS BANK CASE. FSOvnrcB or canada, > District qf Mmtrtal. \ POLICE COURT. The exammataon of Cyrm Newton Biihop.oî the town of St Alban8, in the State of Vermont, one of tfi United Stetes of America, teUer of the St. Albans bank, now in the city of Mont- réal, taien on oatti this seventh day of Novembér, ii the year of our W one thousand eight hundred and sixty-four, at the Police Office in tiie Côurt-house. in Ihe ci«y of Montra, in the D^ tact of Montréal aforesaid, before the undersigned Judge of the n-T"" ""^ tl ^ •'^' fS^^ ^^^ *^« ^^^ «>*7 ^f Montréal, in Se présence and heanng of Samuel Eugène La;ckey, Squirfe Tumer W Ahimanda Pope Bruce, ChiSles Moore^Sw^er, Se Sî!; nT? ^'7^^' ^^"^ ^«^°^»" Wallace, laiiefl Aie? ander Dofy, Joseph McGrorty, Samuel Simpson Gwgg, Dudlev Moore, Thomas feonsdon CoÛins. Marcus Sp^, and f UkTS Hutchinson, who are now charged before me, upon complainte madê ^deroath before me under t§e provisions ^f Ae TreL betw^n Her B^jestjr the Queen and the United States of America,^S our Statutes m tha* behalf made, with having committed ^ÏÏn tiie junsdiction of the United States of Amfrica, the follS cnme mentaoned in the Treaty betwèen Her Majesty the qZ' and the Umted States of America, to wit:-For that they' ' the said Samuel Eugène Lackey, Squire Tumer Teavia Ali! Ty^^T ?TÏ'ST^^ Mc^rJsw^ger, GeoTscoU, B^n^S ?• u^'^^*^®^ McDowall Wallace, James Alexandir Doty Joseph AfcGrorty, Samuel Simpson G^gg, DudKy Mooîe S ^ ironsdon CoUins Mai^us S^L, and^William i. nSii^n^ on Ae mneteenth day of October last paat, at the towTof St. Albans, m the Stote of Vermont, one of the United Stetes of Amenca, bemg then and there armed with certein offe^ sive weapons and instrumente, to wit : pistols commonly known and caUed revolvers, loaded with powder «£id balls and clJ^àX ^d ShTirr ^'^î;^ Bi«ton,feloniously did make Sdt ^d hun the swd Cynw Newton Éishop in bodily feay and m dan^r ' ^Z!f\7*r^ ^Sf ?TS"* ôTseventylhousand^ollars current money of^the said Umted States of America, and of the value of seventy thousand dollars current money afor^said.^f 2 moneya '14 1 1 ï' '■-- j. .. . (. „ .,. 22 -jrr and property of the bank of<«t. Albans, a bodj corporate, consti- tuted and recbgmzed by the laws of the said State of Vemont, and the said Uûited States of America, from the person and custody, and possession, and against the will of the said Cyrus liewton Bi8hop,-then and there feloniously and violently did steal, take, and can-y àway againôt the form of the Statutes of the said State of Vermont, in ^ch case made and provided, and against the peace and dignity of the said State. The déponent Cyras Ne^iton Bisl^op on his oath i^th— On the nineteenth day of Octôber last past, I waa fulfilling the duties of teller in a banking institution, knoira as the St. Albans bank, m the town of St. Albans aforesaid, during which dav, and between the hours of three and four of the clock, in the anernoon, two persons whom I had not known before, but whom I hâve since identified and whom I now,see in the Court, and pomt out as tfo of the prisoners under exainination. Thèse two persons are now known to me by the names of Thomas Bronsdon Çollîns and Marcus Spurr, such bemg the nameë to which they answer. At.the time the said Collins-and Spurt entered the said bank upon the "i88or5r notes of the said United States, called ^enbacks, and other the issues of différent banks in thesaid States* Ir^jgmze tjis sum of money by the paper bands in which it is con- mKlf nf i^u''*' «^«^-pacJ^ges of money now produced by the Tl J^^Jo^'ol»^» contammg one^ one thouind dollars, the other, mne hundred and eightv-four doUars, as forming a part of a larger o?oSe"r iT ZT f^'^.^'^^ *^*^ ^» theldd^eteenK; Hono » ^ .ÎT?.P*°^T«' ^^^^^^-^^ ^ pencilling «le figii^s 1000, 'and the\letter8 ^ S. B." représenta Braley R^bw there, by Martin A. Seymour, a clerk & the said bank. The otLr IZÏ^ T1^^. K *^® P*?®"" ^'^^ surroundîng it. And I Arther say frit, tbat-otber^aimg^ aoney h â v e be IT'"' X .-i-u-.^. . k ' 28 ' ^ : I hâve identified as having been «tolen from the said bank, on the said mneteenth day of. October la^t, were so stolen hy the said five perBons to whoŒ I hj^vè proviouslv referred, and among^.whom were Ihomas Bronsdou Collins and Marcus Spurr, two of the prigoners now under examîâ^^ion, and'Mdentified, and poujted by me. The foregoing déposition having beeo read/over in the présence of the person? so oharged, the déponent déclares the same to con- tain the truth and hath signed \ tîYRUS NEWTON BISHOP. Sworn and acfenqwledgcd before me the 8th. November at Montréal 1864. ■\ Chas. J. Codrsol, J.8.P. The foregoihg, déposition having been made and ^ad in the présence and hearing of the- prisoners so above oharged, they are . asked if they hâve any questions to put to the déponent. They dei5lare they hâve, and the fbllbwing évidence is taken in Cross- examination by Mr. Kerir thé prisoners' counsel. I do not reoollect that thé persons who entered the bank in the first instance said anything to me previous to my getting m the director's room. I was very much fnghtened when they» pomted their revolvers at me. The first thing that I reoollect o# now that I aaked him was, " What this meant," and what the pro- gramme was ? He then said that they were Confederate soldiers detailed from Early's anny, to cpme 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 coHar, they said that if I made any fiirther resistaqoe or gave any akrm, they would blbw mj brains out. I might hâve asked them to spare my life» some^ tune dunng their presende there, but I cannot say >)sitively that I did so. Fright and confusion conséquent thereon tended to confuse my thoughta at firtt, stiU I recoUect what took place at first ; Tam certaip that I detaUed ail the mcidents correctly ; I n% hâve overlooked some however; I cannot swear that I did not ask them to spare my life. I uûderstood, when they said ^t they were Confederate soldiers, that they were soldiers &om the South. North and South hâve been at war with each other for some years past, and are still so. ColUns told me, after IJe silver was taken, that if their soldiers were not fired upon, thev woqld not harm us. I don't remember the whole of the oath admmistered to me hy CoUips, because I did not stop to Btudy it i^t that tîme. I was willing to d» anything at that tune 4o^«av«.Bjy^4ile, Tlàfr imtiab^erN. B.,» upoir^-pcka™ oT- one thousand doUars greenbacks, were put by me at Stanbridge, i v'' ^ ^'-f i.ï. 29 ïï nnn*^"* *^* twenty^eoond diy of October li»t ; tbe figures If 's2. K .^"^ *•«« P"t V ««e there. I îdentified said packages band of th« said parool, put them by Martin A. Seymour. I swïar p^tively that thoee figurée are Martin A. Seymour. I ide^ tified the package of pine hundred doUars, solely by the pàpet banda enreloping the amall jfMwkagefl, of whi(À it ii compose^. I do not know that there is anything very pecuHar about thoae banda It w a oommon thing in banka to hâve banda of that kind round parcelaoftheirnotea. Irecognize.thepaokageofnine hundred and eighty.four dollars merely by the band upon the amall paokaeea it of wnety-five dollars m greenbacks, of différent denomiWtioM. included in the large package marked as oontàining two thousand SIX hundred and ninety-five doUara, were loose when I first , aaw them at Stanbndge, and the band was placed round them by me. The package of five one hundred dollars greenbacks. m^Stanbndge. There were no distinguishing marks upon the ^enbacks so put up by me àt Stanbridge, to show thS they h^^been the property of the St. Albans bank, and I identiÔed «n!li T *ï^^ ''''^.? ^'^ others-upon which there waa TT! '"*?'•' î '*""*"* identify the hun(^ed doUar greenbacks n the package by anv other niean, that he was in among others that were marked. Vtjen I came out of the bank, as mfntioned m my examination-in-chief, the prties on horseba<5k, who had &ed pwtob as I hâve mentione([, were at a distance of about *ae quarter of a mile from me. I cannot teU how many people there were pass.ng the said band of men at the time I went on the side-walk I cannot tell how many women and children I aaw near them. I saw half-a^ozen near ^. I cannot say that 1 sawthemfiring when I came on the foot-walk, but they wére .finng when I saw them in front of the bank. I.sa^ them provipus '«aving the bank, through the window. I did not see atty person we're21.% '^-f ^"^ï ^^ *^%P*^y- I ««" swear^afZ were fanng at the citizens, because I aaV them pointing their pistofs &„î?a^® *'**^-*'^' *°^,'*'' ^^ ^^"^ *^e^ discharge their pistols. ^Zit f ' ^*^ï *°^ ?^y «"^"g ^'^^^ I «»^ *»^« °>«^ on horseback wf w ?f^^' V^'^oxa to the two men leaving the bànk. The 31 1 A' t^^ *^** *^« ^"^ «f St. Albans extends in a ^g^ 4pcteoa..m«e ihan one qnarter of a noie^trom the Sf?— folnnS"?^* i^^^"^ *ï^ dirBeU>T\ room whe^ the shots were SSo tt;"tree?''^' ' '"^ ' ""'' ''' ^^'^S^ *^« »>"^S V T ( 4. lÀ t- r i. ! !1; ; .^ 80 *• the bauk, the bank was m possesaion of notes of the «me kind and denommation as those referred to in my croZxSatiT and notes of those descriptions were taken away C&nSk by the parties I hâve spoken of. ^ ^^ ^ déclara that they had no forther question to put to the deporn? and this déposition havnig been read in Ae présence of th^s^d pnsoners the déponent déclares it contains the truth apd hat?ri|ÏÏ CYRUS NEWTON BISHol^ Swom, taken, and acknowledged ) ' ontheday,nronth,andyearhere-L inbefore menlioned before me. ) Chas. J. Coursol, J.S.P. (1 Se &«« M^'^'a®^"''* îï^'**' ^eavis, Bennett H. •SLf^.Sib M^nLÎ^?^S i^^^î' ^"°''«« Scott Doty, Joseph iSfrortv sS^* ^*^'^'®' '^'^^ Alexander H^tchm8on, who are now eh^r^^hJ^^' William H. nmde unde^ oath befow le^§!: tt ? "^^' "^^ f««ÎE'ai°t« between Her Maieatv th! /ï^ the provisions of the Trèaty ' Scott, Bennett H^^X S Slï'"' ¥^^ Swa«er, George ander' Dotj, J<»eph Xorort ^'^^T'ï WaUace,laiies.Alex- t^î^tè 5™- ï^-^ii..r:? Sowles, feloiSuslj did mJke ^«ÏÏKSÎ ' "!*¥ T° <»« ^^^^ Sowles, in bodily feM^^aSl^ T "^"lV*^.i ^°*' **»« «^^ Albert 8and dollars cimentZ^lî^TJ' "^^VÎ^ *® «"«««t of nine thou- and of ™vZof^:^tJo,^r?r^^ States of Americï, Baid ; also certain ZS. Z^^ ^?^'^ «"^«* ««ney afore- Tr^aiuiy STtTt L^f^ tr*' 'f^ ^^^ States sandsi/hundredandMyTCLZL^™ °^ twen^yn^ne thou- promisoiy notes of Ae tinitedTtaïïr!îV°^"^^ «foresaid; cerbûn c en t, int ; ;rMt, c aUod five w4^ ^5 r ^^l^^^ "^ '^" g fi^^f«>* and yï^of foSîeen LCn?^ni^**°?"' *^ *'»« »^^ notes of the said Uni^lZ^V^TriLrci^^^^^^ '^^, ri K K §*^ V^ï ï^^- 32 compound interest notes, to the amount and value of one thouaand dollars current money aforesaid, of the moneys and property of the .First National Bank of-St. Albans, at St. Albanï aforesaid.-a body corporate, constituted and rècognized by the laws of the said Umted States of America,— from the person, custody, and posses- ion, and against the wiU, of the said Albert Sowles, and m his présence, then and there, feloniously and violently, did steal, take aad carry away, against the form of the Statutea of the said State ot Vermont, m such case made and provided, and against the peace and dignity of the said State. This déponent, JBienri/ NeUon Whitman, on his oath saith ~I recogmze among the prisoners, now in Court, the foUowing, naminc themselves respectively,— Samuel Eugène Lackey, Marcus Spurr, James Alexander Doty, Joseph McGrorty, Alamanda Pope Bniee Mid Xhomas Brondson Collins. I firat saw four of them, riz.: Samuel hugene Lackey, Marcus Spurr, Ahunanda Pope Bruce, and Thomas Brownston Collins, at Stanbridge, aforesaid, during the night ofc^ the lyth, and, to the best of my knowledge, about one o'olock on the moming of the 20th day of October laflt past. Two of them namely, Bruce and Spurr, were in bed, at a tavem kept in the vJlage of Stanbndge, by one William Elder ; and I made prisoners ot them, and put kéepers over them. The prisoner, CoUins, came mto Henry Bacon's hôtel, in Stanbridge East, between twelve and one o olock in that night. I was in the hôtel at the time, and ordered hm mto custody, and phwed keepers over him and the pnsoner, Samuel Eugène Lackey, was arrested on the side-walk near Mr. Baoon's hôtel. He was also arrested by my orders, m my présence, and brought into Mr. Bacon's hôtel. They were aU dressed m common civiliana' dress. The two others, namely, James Alexander Doty and Joseph McGrorty, were arrested by me the , foUowing mght, that is to say about two o'clock in the moming, of the 2l8t day of October last. They were then sleeping in a bwn, in the first Conoesaion of Dunham, in the same district ; they were also dressed in civilians' clothes. Thèse two last men were armed. eaoh havmg a Coït revolver. The first two, namely, Bruce and Spurr, were also armed when arrested, having each two revolvers. Ihe remammg two prisoners, before named, were not armed. rhese persons so arrested had their clothes spotted with mud and some of them having even mud on their faces, having the apiwaranoe of persons who had travelled rapidly over muddy roads. I adopted the précaution of searching the whole of thèse men when they were arrested, teUmg them they were arrested for robbm g the St. Alb ans bank. I found mone y o pon aU of them ; -te poë^wlpran Med. Ûpon the artest of the said Bruce and Spurr, at Elder'B tavem, the foUowing packages pf money, to wit, one .•V ^ I ! iiif;k,-, X ath saitih: — ^I 88 , being the initiais of Cyrus NeXn tIS? ^.i^*"*^' "Cjf.B.." the dénomination of twer^a k!. • , °"^ °^ *^« same bank of Mr. Biahop ; ZZZr'^S^J?\^: ^'^ «•« '^^^ ol wise countedt^d bea£X iSof C^P^Î*^*^ ^""«^'i^- package of the samerteMle'aLSofoL^ B«Aoi, and anofTr package of bank biUs ofTheTtlïbt^''LÎm^°"^ ' '^°'>*t«r thousand doUare, and initided oif^î^n ^' *^v*® «^^''^o* of one er package of bU hTTthe ^71^^'',^^^ ''^''^ ' ^^o^' thousand doUars, marked on the co^L th^I *^ thr amount of one . package of biUs of the same baST?h?! same manner; another dollars, likewise initialed on the b^k^-^oS*""* f ""^ ^^«'^«^d the same bank, of the denonSatWftftt^ î P*ï^*«* ^^ "^^ of thousand dollars, likewise mSZlrî^ ' ^ *?® '^^'^* of one âge, conteining one thous^d doC^f S' V^.? "^''^'^ P^^^- eleven other packages of bii of SS 1 k» ''Î *^® ^°^e bLk ; one thousan/ doll^, ,md mLled i^ T' ^*^' **°^ <'««*'^g also a ^ckage of bilJs of tW sSme bSllTtJ'*^ '^ *^« ^"^^'^ hundred dollars ; another Dacka^ .fT^' ^ ^^ ^"^"^^ of five four hundred doÛars ,' tootfêr oî^thf *' T'^l ^ ^^ ^omt of hundred andninety-fiVe 7^?^- an^fhT?..*" ^^' *"^°«'^* «f four of one hundred dofiars MS^'oHiï ""^u^^ *^«' ^ *he amount them, and others m and^. p-^ P*°^*6^« ^««^ «o bands on a«dmarkedthem,ï!^gt^^^^ on them° United States Treaaury notT onm^n i' *°1,^«'^ a package of tenthsTreaaurynotesTïït' ^<*™°»only caUed seven and tffee- dreddoUaTîhet^d^^'ee^f^î^^'^^f.thousan^ bed When I entered tS b^lf Hk' "^ ' ^^? 8tated,lrere in m the same bed. Thesn ™SL !2^°' ^^^ ^^^ aleeping Wether ont of the pocfcJîf'tSerctr^dT;!^'^^^ tpok loose under their pUJo^ fiîTn^T^^' ^? '^"'^ packages I fonnd in fteir pockete a T; dX^ '' î*" ^®«^ '* ^"^ I abo l^e-e packages TbaiAbk and t^»,,"' ^r"*^ ^^^ dollanr. W» «ViTi: .... * "«arcûea tbem i» of bank-bills of American banks • on« Z^*1" "• ""''' *' *^° Packages ..àiiiûiiîiiiiaÈ .(ii-M&... 34 i i k ( î ■ M' Ur ':f upon the-^isoners, James Alexander Doty and Joseph McGrorty, ùpon my arrestingthem in the bam, packages of bank-bills, one of which packages now produced by me, contairis five thousand two hmidred and sixty dollars ; another package of bank-bills and greenbacks, marked as containing three thousand and sixty-five dollars; another package of bank-bills, marked as containing seventeen hundred dollars ; one package principally greenbacks, and a few bank-bills, marked as containing fourteen hundred dollars ; one St. 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 pohce, by order of the judge of, ses- sions. I found thèse packages of money and United States notes in the pockets of the said Doty and McGrorty, when I so searched them in the said bam. And my further examination is continued till to-morrow mommg at ten o'clock, and I hâve signed H. ^. WHITMAN. Swom and taken before m» this 3rd day of November, 1864. Chas. J. Codrsol, J.S.P. And on this day the fiflh day of November in the year of our Lord one thousand eight hundred and sixty-four, the above dépon- ent ffenry NeUon WhUman appears before the undersigned Charles ^ Joseph Coursol, Esquire, Judge of the Sessions of tije Peace m and for the city of Montréal and havmg been sworn m the présence of the above named prisoners deposeth and sùth : Upon the arrest of the prisoners, Bruce and Spurr, at William Elder's tavem, I found in their possession four revolvers, whicl» I suppose to be of Colt's manufactoiy, each revolver being covered with leather belts or hol&ters. Thèse revolvers I ;»oW produce, and they are in the same state now as when I found them in the possession of the said Bruce and Spurr. TheySiad them under their pillows in the bed they were sleepmg in. Each revolver had six chambers, some of them loaded flnd cap- ped, and a few of them having the appearance of having been^ discharged. Thèse revolvers I now mark with my initiais on the belta for the purpose of identification, and now hand them ovôr to the chief of police, by order of the judge of session. I found no arms upon the prisoner CoUins, nor upon the prisoner Laokey. I found, upon the arrest of the prisoners, Doty and McGrorty, in thp bam, and under their dothkg thrown upon the hay, two revolverê 01 a auQuar aescnotuA^ciMittuned eadb in ft te&ther^^bdt, and I now^ produce them m the same state as I found them, and I now mark them m the same manner for identification, and give them to th« i, .»!. . 1 35 aaid chief of police, bythe same ordÀi. tu loaded, and alSost aU L chaS!« «2^' ^T ^^oJ^ers are also and the distance is about twenfrJ-five^SpL^f S ^ * ^«c* «>îâ, where Doty and McGi^rtv C W,tïï^ ï,' sf^îr'" *^? P^««« about the same distance; Eut the C whet ttf '^' *^^^ ^ 18 about a distance of eiffhtv XJi» f T ^^^ ^®^® secreted, Stanbndge tô Bull'^jt' it^k^estn^^^i'^'^^,^"' aa well as of aU the money I fou^ m^l "^^ *^® revolvers, prisoners, and kept them Sfelv ,^H1? a P^««®««'on of t|ie said Court. WnlLttedt'tïï/^eTSt*''" '4 «^ asked me whether I was a British officer Tn//""' ^°^ °^ *^«n» was a magistrate, and that I a^ÏÏ i. / ^^.^""^ *ha* I Albaj.3 baâcs. One of them, wh^I liut?Jr t^^^ *^« «*' awConfederatesoldier8,andSe,î^i!!i, ^^ J"^''^' «*id, we St. Albans, wasin retalilSri Srth« Zf ^J^^ ^ ^*P*^d ^om bj Sheridan,inthe ShSTdS X IfZ^ /«^^î^ P , sation took nlaoe I b«il tuV^ vauey. At the tune this Cohver- them. The4rJkefmtt:"teTerprj^^^^ to inform him that they were^canS a^: ^.' ^^aj^at Montra, there was no télégraphie communLHnf J* \r°™ed them tha. would aa soon g^VaZTbvtS ™'°i'^*.P^'^«î*bat^ ' wrote a letter, a^dressed^rî beOto'c'r n "'"^nJ^^ '^'^ me that the said Gay wm a Pnrif j i ^* ^- ^^*/- They told bank bills, sMen 7bJ me S wt'î*? ?«'"î ?* T ^*^^- ^e they bbli acWledgJd to W ï' t ^ ^'T^/' *^«^'- Possession, Albans. InconveX%ithrwM?li^^ they also told me howley «ot a^ay fi^™ l{ IT "^ ^ ^^^ëe. both together in the same^r^m S^^,®J^;/'?^- They wfre aaid they had taken hoi^wfc. 1 ** ^**«' » tavem. They . Albans /had pSI^bLSkTon^rdlaf ^^1? >' *^«-- sY and ttat they^HÏe off to CanSa L ,t^ ^'^ ^° «^<^<^'«« on ; badly chafei for nding sTC^ tL? l^*'??^ "^^ «*^^es. were they had abandoned ^Iho^ei'iJ^^^T *'?/^* *^ C^, mornin^foUowingthôirarrSfô,Lfî*®'^*^°Î^P^«it. The md, wlthout saddles oTSes î^lïîT^°^^'«^«»o°>aS Bhortly afterwards cUiimed W Zv nl*"^*^ ^*">' »°d they were This is ,bo«t au Bru^^d tt^^Jf "i?l^^^^^^^ <>f «t. LlJ^, threats, nor heW out any inCm^l wJ î and I made use of no mente ; they w^re freely JSd yoSÊ *T *° ïï*^« «"^^ state- anaMcC^^^ade to m7STs^^.,^7S^ Iîrm»|ii» \, -36 ■ the bimk bilb and securiaes taken from aem.imd npoduced h-, m» '"fc" % Court, h«l bee» taken by, them Sl^ a X^ ^ey had shot Ox or three pereons in St. AlbanTnLeîv P w Huntajgdon and We Morrison, and that it was^t «^Ziî^Vi?: '^ \ H- N. WHITMAN. Swom before me at Mèntreal, this î 6th Kovember, 1!^64. j ' ^8. J. COUBSOL, J.S.P. s4A!ierwr«i:d™Mr'i°"Li™'*? s.f^'M" mei do^ i, tie 8t»ete. T ^S CaL L^' *? ■• f ifonned by the parties who gave nto had ail lev wo« 87 the information that a» bftiMl ftf «.^ v , , aecunfaea, and, the pS of st AlSnîT r**^ ^"^ notes and The said men did nJt £h 1 tt^r&ïlTr ^ J^* ^^ *he»- monpj fiom the banks haâ Sedïed tiST" ''^^ ^ ^^J^*»* t^e : Boldiew. IdidnottWnki*ourKo^eywt'?7î'ï^^«^«™*« «omg tosnperintend thebuabeM h^fî^r •^^î®*^™^edm)on be aome iiïwtion of X KTf; ïî ^^i®** *^* «»ere mffl About flix men were ^S mrw£i.1 T^*^' feja^ m p3 . Todm in Elder'8 tavern aw^ i^*"?^ ^T * ««<1 Ws to asaist me. The moneyww S^n^'î^"^ ^-^ caDe/npon '^me of it I took ont o/Zàr^î£Z^T V^"" ^'^'^' from under their pUlowa, bvTnSf «f *i. **"* ^*''®' '^«a taken niy présence, andCS '?eî S^e Lmt* t? "^ ^artindale, iî over to the Me and had it c^nnf^S ^jamediately. I took it riiht . I helped hiiSXso, and one Mr Bi^^ ftf^t' ^^ ^' ^■ h«û. It was then wlJed up a^ sffe fW^*™^' *^«P ^^^P^^ Jt was a Kttïè after two o'cC în 5i • "" P'^sence. I a^ Bruce and Spnrr iew WZ f l'^Tï^.^^*^ the nrisS; Jad elapsed Ween thSTamit JLd fï'* *^- ^^ ^"^ hoS Mr. BIjnn accompanied mT^ ttf lîl*^^*^» °^ «»« ««oney. pnsoners from whom kwwïïln r""*^ '" J?»« P^sence of thé who assisted me h^Sda^n«t ^^"^5 **^ ^^ ™« of KniS and to d Mr. Krfight to takTthfim n» SlÇî^"®" »* ^Ider's wj« taJcen in ^3^ hotet^f^f^J¥ others. Collins after lus «rrest I went to aiest «Zî ^ u^."* » '»«»• Soon away I went back to the'^SX^ Tlî^»* «J^Jej had gone keepers, and as I entered CZm^/n^ l^^ ^"^ '^^der mg the money ont of their wjETJTit "® ^ eenanenced puH- toldthemtf stop for Im,^^^^Ww^*.^"I~"*^^ I poney muflt be kept by S. 1^^ 7^? ït is^taken, and this m person, and got whij i^pDOsedt\?°fr î ^« ««»^h myself aie next day âree one ffiff ddltl?i^'*?^l^'^*f<>««d on handed orft to me, statingTlîl L5f *"""!!'• '^^''^ ^o» CoUins, got fromCoUins ii biC^d IwJnWW J.""*" ^ P"^»*« ^d« î ««hundredand nine^-fiwdXi H^®"ÎT*oftwothon8and had a satchel about S&deÏT* Ww î ' 5f** «*^ <^^^^ ^en m takin« aie moneVoTof 'coS JL^^^T* «°* *^ the heheve, oom^dn^d that Cne v S k ^^**'' *»«' (Collins,) I "-' *^ '-'^^ -* for M,. Knigh. .0 .»„ ^ \i ?l ' 'M ffi ir * \ii il] ii'l 80 - i 1 - aasist me to arrest those men, He, and four or five others, went ^ with me up to the tloor where they were sleeping. Knight went to knock at the door» and I ordered him away from the doorT , Another persop, I think Martindàle, .burst the door, and hé^ Martindale, Cross, and I n^ent in first, and the rest that -were witii me foUowed, and I told the prisoners that they were arrestèd for robbing the St. Albans banks ; Martindale laid his hand npon thera first, and thén Knight jomped upon the bed and put handcufb oh them. I took some money in a roll firom CoUiiù' satchel. The two paokages of notes now produced, marked as containing one, two wousand àx hnndrèd and ninety-five dollars, was taken firom Gollins' pocket ; and the other, marked as containing nineteen hundred and eighty-four dollam, was taken from-tjackey's pockets. The money I took from CoUms' satchel is mcluded in the package marked as contuning two thousand six hundred and ninety-five dollars. The reason that the prisoners assigned for not ^ving me their names was that they ^ere of respectable parentage, and that they did not wish their luunes to go back to their fiiends as having connection in this raid, and for the reason that'it would give their friends unpleasant feelings. I swear that I hâte produced- ail the moneys and other effects either taken by me firom the prisoners, or delivered to me by other people as having been taken from the prisoners, with the exception of a satchel. The prisoners' connsel déclares having no furuier questions; and this déposition having been read in the présence and hearing of the said prisoners, the déponent déclares it eontains the truth, and hath signed * (Signed) H. N. WHITMAN. Swom, taken, and acknowledged^ ^^ before me, on the day, month, I ' and year, and at the place, hère- [ inbefore mentioned. J * (Signed) Chas. J. Coursol, J.S.P. ^^i^t^hîit^(K^^iîÈt2!^àivj^~^^^ '-Xi ^rA \£,-i4- 'a ''fc^Miij.-i*'tft7i*%ti. -S^ .i *?L\*'*>>, ^> 89 POLICE COURT. PROVlirOÏ OP CANADA, ^^Didtidt nf Montréal. .^Çination of J&An O'Leary.oî the ciiy of Montréal, in the l^tn^of Montréal, détective, police officer,taken on oath this 7th d^ "oT November, in the year of onr" Lord one thousaiid eight Mi^d «md sixty.four, at the PoUce OiSice in the Conrt-houfley in the ei\x of Montréal, in the District of Montréal aforesaîd, before the undersigned Judge of the Sessions of the Peace in and for the TOid City of Montréal, in thp présence and hearing of Samuel Eugène Lackey, Sq(uire Tumer Teavis, Alamanda Pope Bruce, ChMips Moore Swager, George Scott, Bennett H. Young,' Caleb McDowïm WaUace, James Alexander Doty, Joseph McGiorty, ^uel Sunpson Gregg Budley Moore, Thomae Brçnsdon Colliiîs Marcus Spurr, and William H. Hutchinson, who «re now charged betore me, upon complaints made under oath beforè me under the provisions of the^Treaty between Her Majesty the Queen, and the Umted btates of America, and our Statutes.in that behalf made, ^th having committed within the jurisdiction of the United States ^ Amenca, the following crime mentioned inVthe Treaty between Her Majes^ the Queen, and the United States of America, towit:— ^or that they, the said Samuel Eugène Lackey, Squire Tumer Teaj^s, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowall Wallace, lames Alel ander Doty, Joseph MeGrorty, Samuel Sitapson Gregg, Dudley Moore, Thomas Bi-onsdon Colhns, Marcus Spurr, and Wilham H. Hutchinson, on the nineteenth day of October last past, at the toWn ot St. Albans,m the State of Vermont, one of the United States of Amenca, bemgthen and there armed with certain offensive weaponà ana mstniments, to wit; pistols commonly known and caUed revol- vers, loaded with rowder and balls and capped, in and upon one Cyras Newton Bishop, feloniously did make an amult and tiim the said Cyrus-Newton Bishop in bodily fear and in danger of his life, t^n and there feloniously did put, and a certain suni of money, tcî. wit : to the amount of seventy thousand doUars current moneV of the said Umted States of America, and of the value of seventy toousand dollars current money aforeeaid, of the moneys and pri ^J ' }l ^^ f ^*- i^^*°«' ? ^o^y corporate, constituted and recogm^d by the aws of the said State of Vermont, and the said umted States of Amenca, from the person and custody, and pos- scMion, and à^inst the wiU of the said Gyrus Net«ton Mop, then and there feloniously and violenftly did steàl, take, and carry awa ^pmat % form of the Statutes^f the said State of Vermont^m— ' case made and provided, and against the peace and dignity of the said State. The déponent, John (fLeary, upon his oath deposeth '■Vil ^:i j ¥T^ 4 ^^,5i'*i 'i]MÉÉ4^^ ^^^**Wl\V>- ''^^A 1 . ! ':m:' I I [!'! !■ ! N f I li! 40 . and saith r^Oh the twentieth of October last, I arrested one of the^ pnsonÇr», who n J^ gives his name as George Scott, and who is under ^«j^afaon at PimAam, whiçh & distant from St. Jphns iTïe Bisteôtof IberviUe, about nineteen, nulea. I was eut thew bv the mstoiction of thechief of poKce,>r. Lamolie, to irwVif î could, the persons who bad broken Wto the banks of St. AJbans aforewid ; and it was whilst I was on duty there that I arrestedTé said Scott. At ike time I arrested him he was in the nûjr^ station, and after his arrest I put him in the cnstody of wS Don^ue, a sergent of the government poUce force oï tfie oitv of fiom Montréal and he said he was. 'I thà asked hin» from what part of Montréal ; he said that he resided at the head of St .h/^**? 8j^et;I asked if hekneiFanyperson Uiere,andhe said \T ''°'- i^«»,'»'?fa°dkerchief, ani deUvered it toSa£um?Lamo&e E8q.,çhiefof police. OnSaturdayhi8t,thefiflhofNovemberin8tant! I received the said packa« from the said chief of poUce, sealed and tied m the manner and form as ît was when I deUverèd it to fc* w ? ''^''^^ ^* ^^ P^^^*«« "» ^^ présence of Cyrus Newton Bwhop, now présent for the purpose of letting him see ite contents wij a view to ts iden%, after which I put*my private mark upon it, and again handed it over to thè saidJàief oY Scé from w^ I haye ihis day «ceived it in the sam^er Lff cS dibon m which it was when I g^ve it to him upon the said fifth T^! A^* ??^*^*.î *^^''^ ^^ «^^ Scott, I aaked him^his name, andhe told me it was George Williams : I told him then t^ who had broke mto fte hanks at St. Albans, aforesaid ; he wpUed tibat he was a Confede«ite soldier, and reaiested our protoSw WhenI acoiwed him ofhaving broken intoâe banks of CSSïï heneil^radBÛttedordemefhavingdoneso. Eewasd^^S Jgihan's clojjii jTtiJMmeajced toJe mnoh fiitigaed «TSEr^ hf U ~,V ""«^i^i^-^j ji'ii 'i^vï i. -*-J^M-.-*^=-i t^-j^l^KSU^»i^lUi>rr *1 and whom I put into theciufolr of «âld RAr^-.JTwMT* -J: *^T^» The foreffranir dei»o2fa«nTS«« î? swgeant Wilham Donohue. o \ / (Signed) JOHN O'LEARY. owom beiore me ot M V- 1 / ■ ': 1 •--•' - — ;■ — ■ — ., ~- ' , - ■ . J .^ K$'.>23ii^s)î^ï>«<.ii)'j %. '' »j^^^l!&»fe:aato^3 v. \. 42 PROVINCE OF CANADA, ) DUtrki 0/ Éfmtrtal. \ l lll ^ POLICE COURT. The examination of Rôttaell Albert Elit», 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 Montréal, taken on oath this eighth day of November, in the year of oup Lord one thousand eight hundred and «xty-four, at the PoUoe Office in the Court-house, m the City of Montréal, in the District of Montréal afdresaid, before the undersigned Judge of the Sessions of the Peace m an« for tho said City of Montréal, in the présence and hearing of gamuél Eugène Uckey, Squire Tumer Teavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowjUI WaUace, James Alexander Doty, Joseph McGrorty, bamuel Simpson Gregg, Dudley Moore, Thomas Bronsdon CoIUm, Marcus Spurr, anc^William H. Hutchmson, who are now charged before me, upon complaints made under oath before me under the proviMOM of the Treaty between Her Majesty the Queen, and the Umted States of America, and our Statutes in that behalf made, ^th having committed within the jurisdiction of the Utited States u '^^îi®'?*'*» ^^^ foUowing crime mentioned in the Treaty between Uer Majesty the Queen, and the United States of America, to wit : —i*OT that they, the said Samuel Eugène Lackey, Squire Turner" leavis, Alamanda Pope Bruce, Charles Moore Swager, George Scott, Bennett H. Young, Caleb McDowaU WaUaoe, James Alex- ander Doty, Joseph McGrorty, Samuel Simpson Gregg, Dudley Moore, Thomas Bronsdon CoUins, Marcus Spurr, and William H. Hutchmson, on the nMieteenth day of October last past, at the town ot bt. Albans, m the State of Vermont, bne of the United States ot Amenca, being then and there armed with certam offensive wea- pons and mstroments, to wit: pistols commonly known and caUed revorvers, loaded with powder and bail and capped, in and upon one Cyrus Newton Bishop feloniously did make an assault, and tim the said Cyrus Newton Bishop in bodily fear and in danger of his lite, then and there feloniously did put, and a certaia sum of monéy, to wit: to the amount of seventy thousand doUars current money ot the swd Umted States of America, and of the value of seventy thousand doUars current money aforesaid, of the moneys and pro- perty of the bank of St Albans, a body corporate, constituted and recogm^ by tho laws of the said State of Vermont, and the said Umted States of America, from the person and custody, and pos- sesagion, and against the wUl of the said Cyrus Newt»n Bishop, then and there feloniously and violentlv did steal, talr», ^r^H îft ç fti riry ^ , rorm of tue statutes oF the said State of Vermont, in such case made and provided, and agamst the pçace and dignily > 48 of the Mid State The déponent, SotweU Albert Mli$, upon hia oath depoaeth «^d «uth :--Abo«t tfu^ee o'clock on the mSg of te twenty-first day of October la«t ^^t, I wa« infomed Si IJZ snspected of bemg engaged Jn the St. Albans raid wm stî^Z^ at feall'fl hôtel at the railroad station, in Waterloo afrrelil • at railroad cars, having taken pas^for Montréal, ma I now see hun, and recopizeTùm by the name of Dudley Moore, as one of thepnsonershere.underexanunation; I arrested the ^d mIotI and caused bm to be taken te Hall's hôtel. A short t^e aC warc^, abont ton mitfntes, the money contained in thTLkae: wbch I now hav^ before me, was haided to me brEdwaiS^l Dudlejr Moore, and also in présence of David Frost.Sor Aft^, receivmg the money, I counted it in the présence of 'Ce pe4^' and fonnd that ,t amounted |to nine hundred and fifty dollîïTd w^contemed in ton packages, nine of which conSed on7C tild to^eZr'it' *^' otherfifty. The said ten packaZ w^e ïï ^rr^ '''î/ Ç*^' ^^^- ^ ^a» ^«0 handeâ by eTther-the 9md Langley or Martin a small wallet, which is now piJduced and wS^ a t^n i^^r*' ^Tr"^y «*"«d greenba^ks ; thew was ateo a ten dolter uote issued by4he Confederate Stetoa ^hl s«d mne hundred and fifW dollars^ which iS^d lïm the s^d ^gley, consiste altogetLer of promissory notes of X Un^Sd ' 8tet?d^r.S?î^ "*îi'^ «^«^^^«^^ Air havi^g,^ Sy stjted, çounted the said money, I roUed it m a handkeJchief nut ^ i^^TLT'^' '''^'^ it, and deiivered itte tKlîcŒ 8 ,^^1,' ^\*^*^*îï?® P*^«^ which bas this moment b^endwed ^ my hands by Guillaume Lamothe, Èsq., Chief of PoUce ÏÏd I «m. toe a.t I «céiTea the «ùd «un „f ,^^^ f^ J^^ li .'?: .^ :rw) *'. 1 '^ Av'^ li .: I> • < 1 -i' u Swom before me ftt'Montréal, ) ^' -^' ^'^I^- thie 8th Novembef, 1864. } (Signed) CHAsJ.OotmsoL,J.p.p. Abbottî '^''''* °^ *^* I"*«*^«"» by'fteir^éomisel, Mr. «nation givenleS^ly S^lttS^^d'^rT" ^^^ nati(m^n^h»f ;TS4^îrtf f"?!**** w^S^ ^ "^ «^ (SigiMd) OSM; J. jCoraisbL, J.S J. ilS*:. lit t,^? v,** m^^î ^ 1^ ^ * ' 45 j^^M^^ 'j Mh pouob couht. I #^tfe4^?^^ or î»ouw,£rthe % of Mo^SS^hÎT?^^ tte Court- promona of tb« Treaty between TwSî ^ . ^S^"^ ""« under the rf America, tho^foBowimr oSi« JJÎ^ ï**? ^^ *'*® U»"*ed States —For that tiliev. thev «ki^i Q«r 7 w " otates of America, to wit • Scott, Bemietï H. rSg, ffl mSL^S'?, ^T'' <*«o^ Moore, Thomas Bronsdon S£ £1 ^^"^ ^"^' I>«dlev Hutchm8on,on the nmeteenthïf^^/îf^i.^P'î"'^ »»<* ™iam EL of St. Alb^, in thrStete"o^ vîîiïJn^^^oft ^^-'^ '^' ^^ of America, being then and the^î^Sf^?*?* ^"^^^ States wea^ns and mslumente, to ^^ Su "^ ^t'*^ ^'«^««i^o caUed revolvers, loaded inU pJ^lr'Sî^.ir'"^^ ^^^'^^ '«'d upon one ÇW Newton Bishoffiji^,^ *"? «»l>P«d» « and ■ hmi the sjii Cyrus NewttnKTb^^Jlïïfï^*" *^'^* «^^ hw hfe, then and there feIom3 L «? î îf "*** "^ ^««' «f monej, to wit: to the amoaatS^v^^î' *^ .* f®"^ «««» of 9ionejof the said tlnited Ss rf A Sl^"*"î ^^^ <»«wnt Beveniy liiouaand doUarsVm^i llfS!™»'.»»! ^ *^ ^»l«o of i J ' * i uAi&«i ■• ■•' lé-ii- • 46 of the said State. The déponent, aiorge Mwin FairchOd nivtn 19th day of October la^t past ; ï saw noone shot, and saw no acts of violence by the ïnen Si arms. Between the hon« of thMe about ten or fifteen roda from the said St. AlbLa baS^en T saw about twenty men armed with revolvers. They were 5l on they were loohn^ for horses. One of the partv so armed and^on horseback approached me, and demanded fi^m Edward NettletoT a 8e<»nd tm»e, at the same moment drew two revolvers when thà said Nettleton replied thathe could^ot hâve hkhT X w^^^^ who demandedit said he wanfce^for one of his pàrU wlj^ Sd ltw.W f ^*««*«^ ^«^ «^*<>W by the persC^eZi^ his bat, that unless he gave it to ftm damned qm^k he woiSdS NetUeton. Atthis moment hewaswithmlixfeetofhun. Netfleton seeing tiie revolvers cocked, put his hand mi^W his coat as tfS the intention of drawmg an arm therefrom. Upon seeins this tibe gentieman on ho«ebacV aaked first if he had ^y Sf ,md 'ïd» to show hmi he inside of his coat, remarkmg at the W £ S if he did not he would shoot him throughT My SerTx^. We ri'^ed'"*^'' *^ to-morrow mombg at ton o'clock, an* I GEORGE E. FAIRCHILD. Swom, taken, and acknowledged,^ before me, on the day, month, 1 ' , and yeaiy and at the place f aboved mentioned. '' J (Signed) Chas. J. Codrsol, J.S.P. sand eight K3ïldred and surty-four, the déponent above mimed re- tîST befo-^^e, the underaigned Charles /oseph Coursol, Esquire, Judç of the Sessions ofthefeaoe in and for 4 city of Mon^ and being reswom, deposeth and saith: I then told Nettleton not to stand an msult. At this the man on horseback pointedS revolvers at me, and asked me if I had any ams with me. 1 1^ hmi I had Hone ; and I hôped he would not shoot an unprotected 51T; rà *^ '^^"'«°* ««>«»•'• of tte party, the one who needed fîSîïî^K f^"f "^ "^^"^"i^^ *r f «^I^en» at the said Nettieton, tellmg the othérperaon on horseback noLto^parley, but t»ahoot tb^ âT'nîrT- ^ tSij time tiie,^ was a c^Kp t^^ their party, upon whioh the two persons referred to rode off in th© H-s #' * "^^ ■S'i^ 'iiwj.ï^^^mT^!^^^ 47 diçection where help y^aa caDed for. I now recognizç and point ont 83 havmgbeen among the armj partv I saïT <^f Aft: now«.dere;a^tion whoiveth.irn:m^^ Charles Moow Swager, JosepE McGrortv, Caleb McDowaU wJff and George Scott. Thèse five persons I saw on h^S^t ®i eachWithtwo revolvers. Ole t^r&^t'^ïrrSt^^hf'llSïe referred and who presented revolvers at sJid Netûeton S Ltlr were and still are unknown to me. One of thaaA é^ JT ""J^"» «jw hjm al about two roefore me «nder th<) provisioni of&e S^iî^'^r^^ <»«» the Qaoen, and thé VmtJs^jTS •^*^**? ^«' ^ajesty m that behalf made, with^^g cS>mLu^^^^ of the United StatJà of aSI aT^w-^*^ the jûrisdiotion the Treat^ Utfk^n fier ISî *£ i. "^«i T® "«««oned in of Amerfoa, tolntt^F^^^tà^T^'^i^^ United Sttftes , . Moore Swager, Geor^ Scott', ^mSuYorT cS^u'ir ?^^*« WaUace, James Aiexàjder dW, J^pf V^S5"i^^ MoDowalI son Gregg,DndleTlîo£e, ThomiSSîïï^n'^'l*""»®^ Simp- and W&x H. HuteWns^nT&e l^?n.^^ Spuiî^ past, at the town of X^b^lTl «tt ^K,^^ October W United States of America, bSi^ntdt?«tf^^^'^^ ^^'^^ «^ offensive weapons and instramenta S?^* *^®^,ànnedwith certain and caUed reVoW, loa^'î^i*'' *i4^^' PJ^ll"^^ and n^jon one Cvrus Newton BiSoSl^v SS" ^l.*^ '*Ï^<*» ^ and him Ûie sud Cyros NewtoHlîS!»; ^ i^, ? "^^ »»» aaafuûC of his life, ta^d^^'SS'o^ir pTO inoney, te wit: to the âmount of^W thla^J^^'^f*"'^ ^"^ «^ money of the said United ^l^ ?f ÎL^^**"i '^^"'^ «««^nt seventy th^M^d àolb^^^J^^^^^f^^^fl ^^ valulof < property of thé bank of St^bZ» ÎÎT f ^'^^^^^^^««oneysand and re^gni^d bT^et^^'of feS &^%^*«' ««^^ted 9a.d United States of AmwicL fiî,^^! ^«f ^T'^^^ ^^ ^^ away ,^g«nst the form of t^e Sta^teTof 1 J?^'^^^*^^^^^ «W m such casô made ami proS a^l"^"* ?^*^ <»f Vemont, '^'--.f the sud State. Cd^^nSf^rJ «»!J-^«ani dignityofihesaidStete. Çï^d^nSf i£?J /?' P*'^^ «^^ upon his oath deposeth and^sïF ît atî^''*f'"'''*î^«»>^» ^emornhîgofthetwentiettdaVrfOnLî ? \*^* ^^^««k in. tjoof the prisoners, Spurr ^dScf atft^'- ÎSi ^'V *^'*«*«d ' ^^îr^^^ bed. iVent te ft^SiroS J^H"" Stenbôdge. / and Ifound it bolted. Martin SSèrfsLî^lS^^!^®'® *^«y ^o^V- i one Cross, C. W.Martind^Sdi^S«^^'"'^«»'»^>'^ présent, but those were aU thati r«SJ: ^: ^^^ ^^aeéthers «d Mr. Blym,, „,agi.^^ ^teiwd tiie room. and the ma^t^Tl^ P'^sem. i «4 my toartv toldaiemit was for robbSe X 8?%^^ W Wéiré arresfed»:! / '*\ * . • «ll'i. / • ■ ■X l" / .#ii ■J- ar^ h ■n y IM M, If k II ' ni; il them. I seariÉlia to eee if I oould fiiid anj arms, and I foond foor revolren between th6 feather-bed and straw-bed, and in the same place a large qoantity of faank-bills. I took the revolvers, and huided > thmcio Mr. Whitman, the magiatrate, and also some of the bank- biliB ; the balancé of the money I think was giren by Martindale toMr. Whitman. Mr. Whitman took aw^ the monej and the revol- vers. I put the prifloners in charge «jf C ."M. Barker ^d Irwin Brigos. I did not identify the.money that I took. After conversation With Mi. Whitman, I went back taa^ searched the prisonerë further, and foond in their possession four hundred »nd, twentj-seven dollars and thirty- five cents in bank notes, scrijps, gold and silver. This money I gave to Chiillaume Lamotlie, E^., ohief of police, on the twenty- fifth of October last. On the twentieth of October last, the prisoner now calling himself Bmce, I' nnderstood to call himself at that time Bennett, and the other one called himself Bruce. The pris- oners on the same day stated in my présence that the monéy which had been found in ' tiieir possession they had got firom the . bank in St. AlbansI I saw at Stanbridge, on the same day, the grisoners Oomns and Lackey, and on i&e next day tiie prisoners [cGrorty and Doty. Thèse last two were arrestêd in a bam in Dunham :ln the possession of McGrorty and Doty, bank-bills of dif- férent ^ds, some gold and silver, and somè bonds, were found. The prisoners, Spurr and Bruce, stated on tiie twentieth of October last that they had come from Burlington, Yermont, the previous moming, in a buggy to St. Albaiàs. At the time the prisons» I hâve referred to, made the several statements that I havé mentioned, no threats were made use of, nor mdncements held out to procure such statements, which were voluntary on their part. The foregoing déposition having been read in the présence of the prisonerà so chu-ged, the déponent déclares the same to contûn the truth, and hath signed E. 0. KNIGHT. Swom, taken, and acknowledged,'^ before me, on the day, month, ( - and year, and at ihe place hère- [ in before mentioned. ) / (Signed) Chas. J. (joujisol, J.S.P. / . And on tiiis day, me lOth of November, in the year (^ oor Lord one thouaand eignt hundred and ôxty-fbur the déponent above named, liçappeared before the undersigned Charles Joseph Coursol, Esquire, JFnage of the Sesâons of tiie Peace, in and for the oity of M ontréal > being n-owonï iri the présence of tita n r i aonera g the foregoing déposition is then and there readto the said déponent^ who déclares upon oath that the same ccmtains the tratn; and JH^'' g>«^l«,«f'è.J fH»i^^T».s>iff •i pnsoners , but the people of the viUaie told m« fW ^/°'' T^^ë then^ «litted ai; the St. AlbaTbSks LTtSîth«îfS^^^ '^^^^ <'oS: were going to rèb the StanbridS bîït ^f"^"^ ^'^^ thatthev informatioS on o^^h havSÏCC^' 7 î?* ''"* *^"« ^f any did not aay anything else at tjwit ff t? foar^.'ï' #1^ ^«7 wards they told W the^^ fï„fir'\**^^^ count the ionejr I io^ZZ^Sft'i\ -""^f^' ^ ^à no^ exapiine it Bmket^^^J^^til f « û"* "»^cé. I dfd not got the mopey frbm the St. AlbaTbânks tfSvZ^u "*" *^«3^^ haa got it on a i^d, whiçh Aey S ZSS ^f S ""^ <^** *% authorfty of the (hr^Xr^t!'^e^,Tl^^\t^^^^>^mid Bhown as su^h. It wm ii.»»A»f fk-J? ,' , *"** i' would ha MDTerMtion. ' "^ «»» the money, aU «un» out ù Ihe «^° Swom, taken, and acknowledired ^ - ^' ^^• ^NIGHT. before me, on the dav, month and year, aDd at the place be-Y * • , fore mentiohed. 1 (Signed) CaA8.i.ÇoDEsoL,Ï.S.P. "- ^^«O^IN^BOP CANADA,) •The in the POLICE COURT. ./ m viiïCi^ ïih'A- V ivm X '1 !:■* 62 Sqiïire Tumer Teavis, Alaœandà Pope Bruce, Charles Moor©^ Swoger, George Scott, Bennett H. Toung, Caleb MoDowall Wallace,. > James Alexander Dot^, Joseph MoGrortv, Samuel Simpwn'Gregg, DucUey Moore, lliomas Bronadon ColLns, Marous Spuir, i^ William H. Hutchinson, vho are now. churged before me, upon compliaiiits made under oath before me under the provisions of the Treaiy betweeu Her Majestr^e Queen, and the United States (rf" Anienoa, and, çur Statutes in that behalf made, with having com- mitted within the jurisdiction of the United States'of America, th© fpllowing crimo mentioned io the Treatv hetween fîer Majesty tire ^ Q^een, and the United States of Amenca, to wit :— For that they, the said Samupl Eugène Uckey, Squire Tumer Teavis, Alamanda Pope Bruce, Charlc)^ Moore Swager, George Scott, Bennett H. Young, Oaleb McDowall Wàllace, James Alexander Dofy, Joseph McGrorty, Samuel Simpson GreggJDudley Moore, Thomas Brons- don CoUins, Marcus Spurri andmlliam H. Hutchinson, on the nineteenth day of Gctôber last past, at the towa of St. AJbans, in the State of ,%nn(mt, one of the United States of America, bemg then and there armed with oertjûn offensive vreapons and instru- ments, 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 thé sàid Cyrus Newton B^op in bodily fear and in danger of his life, then and there feloniously did put, and a certwn sum of money, to wit: tô the amomit ôf seventy thousand.ddlars current money of the sud Uiûted States of America, and of the value of seventy thousi^nd dollars carrent money aforesaid, of the moneys and property of thé bank of St. Albans, a body corporate, constàtuted and recoft- nized by the laws of the said State of Vermont, ând the said United States of America, from the person and custo^, and pos- session, and against the will of the said Cyrus Newton Bishop, then' and there feloniouslv and vlolently did steal, take, and carry atray against the form of the Statutes of the said State of Vermont, in such <*èae made and provided, and agunst the peace and dignity of the , said State. Tho déponent» Qtorgt Robert», on his oathdeposeth and saith : I bave been clerk in tiie American House in St. Albans aforesaid, sipce March last. I recognize two of the prisoners, namely, Young and Doty, having seen them in St. Albans priprtôthe nineteenth dàyof October last past. t saw Yonng theïe, I thïnk twice befort that day ; but I am noi sîire if it waa more tha^i onèeT I saw him certidnly once in the Americui House during thfi iaonth prier to the nineteenth of Ootober ijiBt. About ,4wo yotook k the-afterroKHr of the last mehtioned day, I paw iû ^ firent of Ae National bank, a man named Blaisdale, of St. Albans, having a cUstUrbaiice with the prisoner, whom I now recogmze. 'l^/ç^^VT-l^v 'î*S*5?*5'fî^^^^ 58 •calling him9elf Caleb MoDowaU Wallace Tl,«v -n,* -*«, i- tQgethwih front of the said baï bKVuTI/î; îf 2^^« Mcu^asmg-hJHfas [Colonel, fdr assistance. The Dri«)nAr^/.ft «T» - «»°»«^*^ba<*: from the yard of ^e A^rS^Z^^lZ I reco^eZS,^? ^^lîL M:îf *ï*" House, among whom pejbegan to s^P what teams there wweb^C^irfi.*^^^ ' ^e horses belonging to the teams, mast I w^ hX'i^ ^' mmmmë' jk .i5«4îft "srfcf •rïS'E* «, iiaa iwtjr,; at at. Albans, as I hâve mentione4, they were / ,V-U.ryv» /■ I. • .», 64 dressed in ordinary civilian's qlothes. I saw nothmg eiker in de* chanwterwhatever. Ontheafternoonof thenineteenthof October iMt past, the occurrences J hâve epoken of did not look like & mJitary expedifaon. I thought the anned personp were a mob, bv t£f n"^***?? of October last, the prisoner, Swager, was known bjr ije name of Jones, por to the outbreak mentioned. . Ihe foregomg déposition having been read over in the presenofr ofaeprisonersso chargea, the déponent deckres that the same. coutainfl the trotii, and h^h aigned: . Swnrn Vov A , , . GEORGE W. ROBERTS. Bworn, taken, and acknowledged,> before me, on the day, year, I and month, and at the place f hereinbefore mentioned. J (Signed) Chas. J. Coursol, J.S.P. Thé foregoing déposition fcftving been made, and read in the pré- sence of the swd pnsoners, they are asked if they hâve any quea- taons to put to Je àeponent, and that having decl4d by Mr. ]êerr, the^counsel that tW had, the foUowmg évidence Is taken on croas^xammation: When I saw Blaisdale and Wallace, they TiT* S?" standmg up. Blaisdale had hold of him somewhem ï« «Lrw''®?* j^ was about twenty yard« from Young when he shot Huntmgdon. They apparently were taUdng together wanS^H «''.''''*; ^ «^o'Jd J'^dge from Yomig's action that he wanted Huntmgdon to go across in the park where we werte. I saw ton or twelve men near the American House belonging to the band. tl %,^^^'^ «^d,ï»»>^« charge of them at thatîirtVf the town. They appeared to act together, but I saw nTphm of ^^rl\l :^T%T''' °î°\i« St. Albans armed the wL they W(Bre, with one of the,r members proclaiming himself an oMcer ii seS^ m?n V ^^""^ °'^'' ''"? Confederate t?oops in active n^^\ ^rJ^^^ *'*^® ^"^ *^® ^®"«»<ïa of thfAmerican Hçuse he said, « OenSeman, I am an officer in the Confederate « mT^'. i*''2 ^^1 T*^'^ *^ **^o *^ *own, and I am goin& to do it;^e first that offers résistance I wiU shoot him." St A^ans has been a recruiting post for the American army befom . aâisv_ g. 11»"î ,f'-fc*-'^-»p»'J • ■;^' -y '«jii^'^% C'.^^'l • 65 » I before me, on the d»y, year, I " «od monthj and at the place f ' ^ hereinbefbre mentioned. J . " (Sigged) Ohab. J. (Joumol, J.S.P. m PROVINOB OP CANADA.? POUCE COURÎ. în ■^i^iTîl?'! ""i {^ ^^J^ghUn,^ or the ciiy of Montréal, v2t S^"* of Montréal, chfef çonatable of ie^Govemmen rolice. taken on oftth fiiio *«».*k -j- * iw— _.»_ . .. "*"""• VrM^l 7^Z vxv"UB»x, umei çonataoïe ot tfte Wovemment Pohce,Jaken on oath this tenth day of Noveniber, in the year of nm^^ T î'"^^ *'«^* hundiidandirty-foCat the^pSce of Monjeal afore«udj^ before the undSrmgned Judg^ of the SeedoM f A J'*'' "î ï^ ^^', *i.* «^'^ <^»^« undeToS Deiore me under the provisions of the Treaty between Her Maîflatv SStte^f^T^^ ^^>r"?-' «IHur State Z TTnSîï s?; ' ^*ï ^^"S commfttted, within the jurisdiction ojL Tvl^wi****i^'*^^;°?"<''^' *^« foMo^i^g cri°>e meitioned in the Î^L .— f ^*J ^''^ ^^^ <^««« ^d the United StaSsof SS T^nîï^V^**- ^^''î,*^'^'?^ «^^ Samuel Eugène Uckey! fiS, « ' ^1?"^' ^Ia™«^d* Pope Bruce, Charles Moow ^ager, George Scott, Bennètt H. ^oung Caleb MoT^^JS IifG^iTudf^^r^'^^a'^ W S mml^ Moow, TJ^^^as Bronsdon Collins, MarcS opuiT, and Wilham H. Hutchinson, on the nineteenth l^nf 2oS^/ ^*. ÎTV*. ^' ^"^ <>f St. Albans, in the Stote of ^ef Z«V '*f *^« V°ited States of America Aebg thetw there amed with certain ofiènsive weapons an^inst^men^ ÎSî! ^bcommonlyknownand called^revolv^riôS wfCw^^ * Iffl*!^^ Iv^^'-S^^ if.'^* i.- ■i> 66 States of America, and of the value of sevwity thousand doUan ^?^ * "****y aforeeaid, of the mone;^» and property of the bank of St. Albans, a body corporate, oonstitated and reoognised by the lawB of the aaid State of Vennont, and the sakl United States of Ainerica, from thejperson and oostody and possession, and againat the wiU, of the said Cirrus Newton Bishop, then and there Soniously and ^olently did steal, take, and canry away, against the form of the Statutes of the said State of Vermont, in suoh case made and pronded, and against the peaoe and dignity of the said State. TJe déponent, John McLofug^, on his oath deposeth and saith • On the 20th of October last, I reoeived orders to proceed to Ôt! Johns and from thenoe to Famham, in pursuit of such persons sjs might be found thereabouts, or elsewibre» who had sought refuge in Canada, aaerhaving been engaged in ûie St. Albans raid. In accord- ance with my mstraotions I proceeded there, accompanied by Mr.^r* Sowles, cashier of the Fnrst National bank, at St. Albans, and Détective John O'Leaiy. ,Upon the aftemoon of the said 20th day ^ OctoW hùt, a prisoner, whom I now reoognize and identify as George Scott, and now under examination, wàs airestod by sud J?lm O'Leaiy afr the raihmd station in Famham-, b the District of Iberville. I was présent at his arrest and at his search, which took plaçp unmediately 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'Leaiy; and which dunng his examination as a witness in this matter, at which I was présent, he nroduced and identified as the same money which he took ^m Scott. After he had been arrested, and the money taken from him, he stated he waa a Confederate soldier, and clamed protection as suçh. He was dressed in civilian's clothes and lodked veiy much fatigued. He had no fire-anû with him! On the followu]^ moming, the 2l8t October last aforesaid, at thjB hour of seven of the clock, I arrested in the same jOace where n£ Scott was taken another person, who gave me his name as^a^S Gregg, whom I now point out and identify among the prisoners hère under examination under the name of Samuel Simpson Gre/M After having arrested hun he told me he was goîng to Montra* and from there to Québec, where he had some friends. Healso said that he came from Kentucky. I then searched his person, and found upon hmi thirty-one dollars aûd eighty-one cents : con- sis^g of on© twenty dollar gold pièce, 6ne five doUar gold pièce and three one dollar bills upon banks in Canada, and onè dollar biU of Ji»e Wmdsor County bank, one dollar and ^i»irty cents in sUver. * ^<>Pe d <>Mar « m f f or ^ -fi je g fio t g in i h fl -^jieata l ouirency o f ^& imted Stat^^d six cents in coppers. He had no other money Thèse sums of money I now produce. They hâve ' -H^iJSH^hU * :»" ft^v >1^' renÀined in my possession ever ainoe. I alan fn„r,^ l- «on nino photo^pSribT At the ^ I mtS« *k "^^i? ^/ P*"^ Oregg, he immediately présentée! a revolveJr ai robbing it." I now se I believe aie photonra] correct likeness. Hé any 6f the other photo, upon the back of whicl ^at u the Ukeness of the num who ^he bank, whilst the others were "5^**îon tte said WaUace, and »^ch hw name is pencilled, is a ' any particular remarks about -_— ■;,:Jïn  ^*'*>P^ '^ ««Other of them, tiîe Wness'^liiriS^^^rSmas^^^^ ^'^' under examination. ^t thn hW?Jr^°''. ^°"*^' P°^ ^ graphs, I askTthe s^d Grtgg^'^hos^à^^^^^^ *^«« P^^ put unon the back of each2\r^rw&ri?;L'''''À'"i^ said dregg waa dressed in civilian's ploSes, md^Z sufferin^'k^! a spram of the ankle. T had nn fi,^!! suffenng from Swo,j,r4.n, and .cWledgedl McLOUGHUN. before me, on the day, ponth, I and vear, and at the place, hère- f mbefore mentioned. J (Signed) Chas. j. Cotosol, J.S. if they hâve a^TâtionTto C^î^'îr '•^^^' *^"^ ^« ««^'«d folk^ùg évidence is tekei on croL^ZxSf' ^''^^ *^' Gregg «nder m^ own respon8ib4 î hS "o w^^t "'''*'^ ^nce of Ts^d pS^^tr ^I^}^^ Ving been read in the ■thetruth.andharsS ' ^*fô^S ?r]^ i* <«>°*a^ Swoni, 4ken,TdTwwledged^ ^^^^ ^'^OUQBUX oefore me , o n t he d a y, ^bA. and vear, and at thetime,here- .inbefore mentioned, (Signed) Cbas. J. Coubsol, J.S;P. m: 1 1 ^rTfTf', 1 1 1' iÉ 1 1 l/t i 1 M ft î ^ 1 1) 1 i t 'i /' / '/ il m-' . < 58 PROVIIîOP OF CANADA, • District of Montnal. «âiâà POUCE COURT. Examination of Jarrm JttisaeU Ai^ingtèn, of the town of St. Albans, in the State of Vermont, one of the United States of 4-nierica, marchant, now in the city of Montréal, takcm on oath dù8 eleventh day of November, in the year of our Lord one thou- sand eight hundred and sixty-four, in the Police Office in the Çourt-house, in the city of Montrealy in the District of Montréal aforesaid, before the'îmdersigned Judge of the Sessions of the Peace in and for the said city of Montréal, in the présence and hearing of Samuel Eugène Lackey, Squire Tumer Teavis, Alamanda Pope Bruce, Charies Moore Swager, George Scott, Ben- nett H. Young, Caleb McDowall Wallace, James Alexander Doty, Joseph McGrorty, Samuel Simpson Gregg, Budley 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 uie Treaty between Her Majesty the Queen and the United States of America, ^d 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 Majesty the Queen and the United States of Amenca, to wit : — For that they, the sîdd Samuel Eugène Lackey, Squire Tumer 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 WiUiam H. Hutchinson, on the nmeteen day of October laat paat, at the town of St. Albansy in the State of Ver- mont, one of the United States of America, being tiien and there armed with certain oflinsive weapons and instruments, to wit: pistols commonly kiiowij and called revolvers, loaâed with powder and balls and capipd, in and upon one Cyrus Newton Bishop feloniously did make an assault, ani him the said^Cyrus Newton Bishop m bodily fear ànd in danger of his life then and thore feloniously did put, and a certain sum of money, ^ wit : to the amoufl of seventy thousand dollars current money of the United States of America, and of the value of seventy thousand dollars current xponey aforesaid, of the moneys and property of the bank of SilAlbans, a body corporate, constitated and recognized by the laws df the said State of Vermont, and the said United States of America, frQp.the person and oustody and posseuion,aûd aœpmst^he will, of Âe lÉid C jnrus New ton Bishop , then alii there f^omoualy wid violently did Heal, take, ahd~carry àwajr, agaînst tfce form of the Statutes of the said State of Vermont, m such case made and ;'k ■ % r*"Wr>î- t-*-^ 4 r^^f^yr ^^f , ns, Marcus 69 in thé aftehioon of thatTay I saw^i? I' *^^^ in St. Albans on that (1^° f '^w^C^^f f ^ï*^;«° ti^em were on horaeback, and 4ere ?rlÏÏ »•♦?•**? ,*^® **'^«*- T^ey ciyilians'dress. l8hSX«T.\^'*^ ^'I^^' Theywereii rode off together t^S'tO Sft^*?r î^- ^«^ rapidly. fshould iuSe Zt *w' ^^®^^<^<* «ot go off veiy Sf^^whom I afterwardfl leSl^Tu^w Bd^S^^'^^ *^« tbe bank, was one of tha mr^l tu j ^^' ■°'"™«ey, cashier of that rode off together m/S?! ^ ^««^ shots fired Êy the party sition havingS ré'a?over bT*?'*^- ^^Z ^^oing §ï^ charged, the^^depone^t decW thlAr''"'^ °^ *^" prisoSers^ and hath signed ^** *^® ^^ ^ontains the trulh, «r?. taken, and aoknowledgedr'™'' ARMINGTON. Wore me, on the day, month, and year, and at the place, hère- r mbefore mentoned. J (Signed) Chas. J. CouKsoL, J.S.P. preÏLf::fti^n^t"eÏÏ^^ "^^^^ "»^ "^^ - the hâve any qneS to nït A"T"' ^^'^ *™ «*l^«d ^f they declaredfbîX KerT^L *H^T°®°*'' *°d *% havinj enéen.ef£;.lrr^^ «»ey had, the iuo^f St.*Lïans bank I shouW l.fZ**?**''^''^^ \^^^ »^^e tbi pufJthŒnrar rd^âSi ^- ^-^•o- to trama, of tle said «ri»,™,^ .R """«f **•" ">»* m the «.. tratt, MÎh^'iil^'"'"' """ ««!»■»»* apures it ooolains féar, and at t he^farog. twe^ fore mentimio A^^-. ' f%f>-' 60 i!r •' ,1 I ï m I ' ./• PROVINOB OP CANADA, ) Dùtrict nf Mm^eal. J POLICE COURT. The exaijamahon of Marfm WdU BeardtUy, of ihe town of St. Albans, m the State offVermoiit, ône of the United States of Amener, now in the city of (Montréal, tàken on oath this eleve, aad CMiy awàay against tb ^^^fegia^^ Ahe Statutes of the said State of Vermon^ in suoh oaw made and ■■,_:i.o--j*^s;^f.^T-f;: provided, and against thepeace and disnitv of thn «nî^ «+«*. fee déponent, Marcus AlU Beard^l^Xn ^s oTth S*- On the ^eteenth day of October laat pastf I i^sidU T%' Albans, and was and etill am the cashier of th« FmnVi^ A ^t bank Onthatdaj, in % afl^n^^Mlerl ^ ^^breaTS ae village, and a number of armed men appeared Ce ' tL^ that I saw were sbimgers. J^en I first saw some of ftesemeÏÏ was m the said bank. The men I saw belon«^„ f« 1- 7 lin v^ounty oanK. Ue wore whiskera then wbîoh ï,a !,«= « a ^^ andie J»ad no spectecles on then^he ha^ now AU T .' «TT' as to what took place outside of the FwSi rLt^o i, T,'***® by report onJy. Whi^a, Vhen h^S 0"^^ ^th^^^^ enquured from me what we were navim^ f^r ««m t i Mr. Aramgton, a merehant "of the rillaêe Th.™^» ? ' Swom, taken, and acknowledged>| ^' ^^ ^^^SLEY. before me, on the day, month, I # and year, and at the place, her©- f ' mbefore mentioned. I ' . ^ / Chas. J. Coursoi, J.S.P. ^° J*"»» I '^^ i'i»»«««d on tk.t day m« whiAe™ ., I » \ Ê- ■1 / ai M-, ■*, ,s^ 1 =1 m , 1 1 ~i « .tjtf "i)fH.*^».j'*-^,iWyv),S'4,. **i o ' H^'- IIP'T. • \ ^Vn if^l 62 '!!:1j:^ ^1 ^'[0:1: He had a dark colored coat oh, bat I cannot say wh^Ht^ black or blue. It was radier ample in sizè. He had M wWsk^^ ffiiî^ ï^'?!?^"* shavedornot. My motive in speiingb W î.i -f^^ a« I did, was that I felt sure thlt he was the man thS had^committed tibe act, and I felt disposed to teU him so. It wL probably not neôesaarv-to tell him that it was a brutal act ; but I hv 71 T ^^ S^iT^r \' ^^^ ^^'^^^^ I ^ admitted there ll^ rr r^''^^*^J^ the gaoler. I Mnk he was standing jery near when I gaid thw to the prisoner ; ^at is my impresZi My fnend, Mr. Saxe wi« beside n,e too. I was notafSuoS: cerned for my personal safety for what I said there | " On question by theJudge.-l had never seen Hutchinsdn before ^JgJy knowledge The prisoners' counsel déclare^ hiving no farther questions to put to the déponent, and this depositrl'liavinff- been read m the présence bf the said prisoners, the "déponent déclares it contams the truth, and ha%.simed ."«ponem bwom, taken, and acknowledgédV >eforo me, on the day, month, I /and year, uid at tiie place, hère- f inbefore lïientioned. J | (Signed) Chas. J. CouÎsol, J.S.P. PROVINOB OP CANADA, > District 0/ Montréal. \ I POLICÉ COURT. The exammafaon of CharUs Alezander Marvin, of the town of St. Albana, m the State of Vermont, one of the United sKof Amenca, merchaat's clerk, now in the city%f Montréal, ÏÏen on Co^Si;? • ^r^"!^ and sixty-four, at thé PoKce Office in the «fo^^S^f^ the aty of Montréal, in the District of MontreiJ aforesaid, before the undemgned Judge of the Sessions of X Peace m and for the said dty of Montréal, -^ the présence ' and heanng of Samuei Buçene'^Lackey, Squi^e^Tumer^S Alamanda Pope Bruce, Charles Moore Sww, George Scott bS B^Él^'^rn^'S^'''^^^^'' ^^' Dudley Moor^, ThoS Sr^n ?"^J ^'T"" ^P'^' «"^ wlam H.ktchiiion, who before me un^er the pw«rofX^2^be^^^ /^^--•iiAr V -v)^ S "Jïï ■ ■ , ' 63 jjesty" the Queen, and the tlnitSa «s^o*..., „i« a ^ «id tbe United Xtes S im« Jl^^ f '' -f "J^^ *^« ^««e'»; the:^d Samuel iugenel^^^^ *% manda Pope Bruce, cf arles M^rJsS^ p^^^^'o ^**^«' ^^a- rf Amène., be,ng Ihen and thefe-'armed S cS„ „»?" Mve-ireaporia and instruments towit- ™.iM.« ^«ain offen- , called reVolvère, loadeTS wwdt ,£d h^iu Tf"^' ""ï"? ""ï upon one Cjnis Newton KalnKl- i ^ ""^ "«PI»'", m »nd mjbrother's store onuS^LjjtZ.l^î^K'' ^' '^f ^^ ^ o'clock in the afternoon of^Jrdaf *^rfi«f^'^^ T* *^ the prisoner, Doty, on a blaS horse: fc^^\ C'ïh.Vr .^*? twenty minZ afCT fiirl!J^^..**'S«ther on horseback about fireat^ha8te,^d^^Ld aU^ 1T'' ^'^ ""'"^'^ ^ ^' ^ -aa^e part;. T hSrlf^^g^ AlTg^ ^^^r and aa one pa rty T heâ^ > »»»^Wef ^ûtTflmlï iT luf !!i!l "^ / 'i ^ 1, 'J'îâ t®«»'.tif*à*!4i^jfe! %«,,.. i', V>* , ,( r Q 64 M merely asked him Ite direct (question, " When ^ ?' don Creekon thelôj)po8ite side of the street, w^ , " suing partjHP' and 1^ answered, " Q&min^to su " " aide of ihe Creek.'*^ Sheldoi^ Crèek mbovA . Jt/Albaâ* men llàid « yinïer^l^ our\ ^ ftrred to a party of ÉÉf. lâJlbaias'^^l^l^ puwSpgktÊé^antaed pftrty I havs' spoIÊen ôf. Thst^flined '^iiH|f|ihat ail strangers to mel. JWÊf were dréSSfd of thei% diffèring ' Ikan éMh! other^â hamg Ib^ ns^ ov^r m tw presencérti ^' '*" pnOTti^^lares the «iiùe contains ._, ledged^ ^j^ , month, I ttepiàce, hère- f • , ' -'s; m. } ^■-.■. Chas. J. CoÙksol, J.S.R^é'; 3'>ï|i* I^Éregodng déposition having beén mad^^d read in the f^Tpresenoeandhearing of the'i^iid prisoners, theylÉp àsked if they '^Vve any questions to put to tiie déponent; ^d they having *^clared, bjr Mr. Kejr, Iheir counsel, that they hà|^ the followmg. ^.ence is taken on cross-examination : *•; > ._ saw one inan trying to fire upon the armed party. Th© prisoners' counsel deplares having no further quesifcns to put *to the déponent ; and[ this déposition having been read in the présence of the said prisoners^ the déponent d«clare8^it to contain the truth, and h,ath si^ed , ' , • ÇHAS. A. MARVIN. S^oiji, taken, and aÀknowledged^ ^ beifore me, on thp day, month, I and year, and at the place, heré- [" ". " inbefore mentioned. J ■ ' - % , Chas. J. Coursol, J.S.P. Jt- PROVINOB OP CANADA, DUtriet a/ Hfontrtal, Jià POLICE COURT. The examination of JETenry George ISdton, JEsqï St. Albans, in the State of Vermont, one of the America, Counsellor-at-law, noW in'tibie city df oath thJé ^i#|^aj of Novembor, in thf thousand e iJMM tndred and sixty-fi^or, al Couijt-hottBflMlHpft ^Igr^j^ lyjfontyeal, in < afor^said, before the i^dersigned' Jadge î;the town of i States bf i^^en on Lord oi^e |e Qffice in tlïe Besçions.of tiie ,< 65 " Peace m and for the said* city of Montuaftl în t\.^ ^ '■ 4«Ki hearing of Samuel Eugène irS'^'Tnîf^^'^''^"-'^ Alamanda î»ape Bruce; Chwles^orirl* ^Tl ^^^ ^1*^» Bennett H. Vormg, Ca^eb Sw^wi^-Ty ^''^ ^"^^ Scott, Bennett H. Yonni, Caleb MoDomll w.!!.». T ' ^'8* jnd„ D^, Joseph Mc^GrortJ, aSa^^a^™'!,:^"- and there felomousl/did wTinn^TrtLS o^*^/^ ^ ^""^ doiroenOKT^J^XJW^ "f *f »"* State, feo «* «7 .^ .p». ion. .^ht'oSt^aCeL^S;^^^^ m^ M-tîç' %ï^ W»*- v> Vk^ *- — •'■#- 1, 1 ^■ 66 11' ? 6> w on thesame Street, and about midwaj between ^he Firat NationaT" bank and the St. Albans bank. I am acquainted with the laws of Vermçnt, and state that the volum» now produced contains the ^generaJ statutes m force in Vennont ; and I say that the sections 22. J4, and 26, phapter 112 of said statutes, and sections 86 and 87 of chapter 16,and sections 1, 6, and 9 of chapterSl of thè said statutes wel-e on and pnor to the mneteenth day of October last, and are now mforce m the State oT Vennont, and fonn part ofits gênerai laws. I am acquauited with the seal of saia State, and the sima- tures of the govemor and secretaiy of state. The seal a&œd to the certificate written upon the leaf between page 790 and the firet i>agè of the indexof said volume, is the seal of the said State Ihe signature J. «regoir Smith, subscribed to the said certiEcate. and the signature^ G. W. BaUej, jun., also. thereto subscribed, are reroectivdy thé sigoatures of the governor and secretaiy of stato of the sud State of Vennont. I also say that the seal affixed to the (Berùficate upon the hwt nage of th^ copies of comphûnt and wamint made and issued in Vermont, and produced and filed ve*. terday 18 tiie spal of the said State, and the said signature of J. Grôgonr Simè, and G. W. BaUev, jun., therete subsc^ed, are respectively the signatures of. the Governor and Secrotary of State of the said State. I know that robbery is a crime by the h^ws of tiie -State of Vermont. I am one of the légal advisere of the St. Albans bank. I know that this bank bas been canyinc on busir ness as bankmg corporation at St. Albana, under the laws o£ Vermont for s«yeral years past, lûid was so canying on busmess* on the mneteenth day of October last. I compa^ed&e copies of complamt and wan-ant before referred to, with the Siginal com- ïJaink and wamnt made and issued at St. Albans, in thT State of Vermont, and déclare them to be trae and exact copies of the said onguwk resiiectavely and they are in thé fonn prescribed by ' Ihe laws of the said State of Vemont. The crime disclosed in the o said complamt, and also m the commencement of this my exami^ SÎÎT' f^" """^T "i "^^^^7 according to tlie laws of the btate of Vennont, ^and atfcordmg to the laws of the United States of Amenca. Accordmg to the laws of the State df VwTOont, «le duty ^ the town grand juror is to lodg complaint befoife justices of tiie ceace, that is to say, withhthe toL to M^ich he is elected. 1 know that Mr. Ciellis P. sjord, who lodged the çomplaint refen-ed to, was on the nineteenth and twen- taeth days of October laat, a grand juror, witl^ the said town of St. Albans. No denositions are taken according to'theSws of wraed lyoïrtireTHronnaSon oT the grand juror. By the hws of Vennont, upon the last mentioned days, a justice of the peace had / V A' . / / 67 warrante of apprçhensioJ/in SrS^T K^ k^/' "^^^^ issue a/d I havè Bigned ^ '^T*^ ^ to-morrow momng at ten o'clock, Swo™,taken,«ndacknUdged,^' «' ^^ EDSOl^, before me, on th^^Jr, moSth and year, and aT^ie placée» heriinbefoite méntioried. J (Signed) TCflAS» J. douRsoL, J.S.P Jiid«oftheSe8donnf&e2l^^an^TP^^^ %^. and1,eing re^wornT tS J^rnce n^^^^^ citjr of MoSreal deposeth and saithi-oC C« ^1 *! P""^"®" «> «^^a^-ged , ;; dent, Directoi^Tand âmpi^ tf the ZTr^. *^/,>«^- , "An Act to ext«iid thA «aT- j tû«,-B«ok of St. Albana:" "limited period 2 Ac? £» ir^^S''^^^^» ^ «^^^^ for a " tors, and'corpaj^ o^L Rtikors^Ai?' ?'^'^^/"*' ^^^«■ « to extend the Sïïter 3 ^Z.^ fk "l^*^ ' *«<* " ^n Act " of St. Albans;» KodIÏs of thTS' *^ T*H «*°«'^ «^ **»« ««^k the State of Veni^f ?i^! *r ^®''®?^ ^^ «^ «»e Législature of copies respecMri^ fte s^aînf îî^'*^/^*^^^^ ^ the said the^ignarresTG'îeX^^^^^^^ «d scnbed to the sLid *.prHfl««f«» ' ^ , ' "'• -^«^ej, jun., sub- The, acte of whipk k^^^I . °*^ *"® ^<* State re^pectivelv Ste^of Ve3^ «t^!» were in filnX aresojandthebâkwal onfK^ ^ ^^^ of October last, and stiU u»« on'busC,^^^^^^ is organized and carrjr- «^Acte.%e vi««e,^dS^nA S^*^ of Vermont, mider tfie Fttbin Ae y^^^l^^^lf^^"^, ï^fo»^ referred to, are a«ed in the State^of Vprt^n* * x?*®^^^ America, and are atu- '^f the prisoŒ cCld AJdL^'''l?*1 ""^"^ ^ the présence tain the tri^feŒSinï^ ^"^°* ^*°'*^« th« ««^e *« oon. Jworn^t^Eiw.Tl^, . H.G.EDSON. Beïoro nu and year,' bereinbef (Sij ]be dav, month, and at Ûie place B mentioned. W) Chas. J. OURSOL. J.^.p '7 V . i.. i-^.t »Sfe". «8 I' l 'îi h I j I '% î^^-w^o. — r"«>tion having been made and read iJi the nre- 'f>mJZ^' ®*™^ ï . piBonert ahove named, thev are aflked ÎLT^ Î*!! wiy questaoM'to pht to tbe déponent ; and iey ha^ J it carried* on business on the Muraying^i nineteenth aild vhere ._ — „„ ^^^ «iwv^'cuth pf October laat. I çompared copies of the complaint md wafitat made and issned m tte State of Vennont, and filid in thXprçceedi^r UmS not State when I so compared the said thirg/tAd comSririt y^h the. onginal thereof. ïhe said copies of complaint aiSlrnuront are m the hand,.riting of a man by the «Le of TaJ^^f S^k' I ^0 not recognize the handwriting in whib^ the name l^ilham H. ^utehinson îû the warrant and £ the comnliSt ap^a«; OJe nameWilliain M Hutehù^onappearedSVeTrS w^t and comphimt when I compared it with the copies. Wa WBual in our légal proceedintrs before maaî«f«.t!;<. *«*L7;_*:" w0Hs in "the same S&ÎS Ï2* fS^'J" ^t"»»»». I canVactise Wore Z (^itautand Distnct Court of the United States Stting in the Sfa^ Supen^Court sittane at Washington. The United Sos^ute^ at Wî.ubl«hed Ijâttle & Irown at Boston, «e%i^ „ jrathenbcm^aJIthe %tsof the United States withSirC âeîJ'^.1â-f**S^i^*^- If^otsayhlwmiïyî^fuS^ there are ; I « abôul jjeven. fïm acq'uainted m& theîw id Sta^ «non m subject of treason, as most lawvers ien^ readmg. The définition of tr^as^gainst flie .8 would he theleyymg of waraf»infl^ta,oradliering ^j. or ^ymg them aid or mùfort within the United ^ZZl T r^^^' ^ ^^ ^^^ Qwin^llfigiâïR» to the United 8te^. I âm Jotprenared te swear^at Sie UmM^Stadb dolge^ reddmg ni the Con&nù^ §»:^nd wïio h^ST^^ tebanab of the caimy|^decide. ï haïe heard of an Aot ffi Ca^resa of the Ùnit»te#rf the nineteepife of JuS,1«e^ou! lit liJ'^^S.^îPf*]^"'- Ila»ow4ta civil war ha- been wgng befejreei^ the Umted States and the 8> ^plgl^ POLICE court; 69 Srr hïSd^eT^'**"'*'^ cleponentdecUres U contaû. the Sirort, taken, and acknowfedged,^ ^* ^' ^^S^^- beftirftine, on the day, month, 1 ând year, afld at the place 7 nweiabefore mentiohed. I (Signed) Chas. J. Coursol, J.8.P. PROyiNOB OP OAjrADA, ; J>irtrieto/Mi»ùrtal. i thepresSald he^/of S^rfi^t^' *^* "?^ f^^^'^î Montréal, ia SK^before^nf T ^®^^^®. "'*' ^.ï»" complainte made - ^%^t: Tue^tdihe'srsf tf;^ î^h î^*^'^ the jurisdiction of the UnLT Sfl* i**/^ conunitted, withm iim t h e Aen and thère feloniôus^ w î 5 "*1 î" ^«^"^ °* ^'^ ^i^ irrt. to the amount of seventj thojjpand dolhira current^; % ll'lûL liWi !t 'îi % 't 70 senceof wbslc^ «id he Lad no spectacles on atâat^eï^t^" présence in regard rf theprice oftZ M.T*5*f* '^^ "» "»/ ofthebank.h&n.râ£Xl^M'i^ the money article. I did sn 4a ri . t^' «pd asked me to jread was unamed at that <£e l^tïZl'^}^T> ««tohinson vidualfy in the ^^^!ii^:J^^^^ ^^^ uj civifian's dress, and so also were Se S^ Hutchinson was contaiiS the tmth, Wà ^^^.eT '^"'^ *^^ ^* ^""^ Swora, taken, and acknowledgedA JAMES 1SAXE. before me, on the daj, month, ( ' | ; and.yeâr, and at the place T ^ ^ he/embefore menlâoned. J 1 ' A / (Signod) CHA8.J. <^uRS0L,J.S.P.^; '' , croswxaminatir: MrimwL^l^I^i^"? if^1S"«« " *»ken in moustache. I tldkÏÏSZîn^,?** H BÇ«tçhinson bad a -^r^r^rtmjrm me. ^^^^^ÇTe .^/L"^^ < / ~H3f / /,/ p^i^FTTv' 'JfV '/ «r/- ' 1} ,f;^,^'v, «on ifl, tfaat he haï on « blaok hhnà «mw« fcu u * ▼. . ' veiy bright day. Thero WM?SJiJlS • *u * ^' ^^ «>' » be poritive Aat I «,w bim aCîeS^ïe Tant X« / ÎT'' I nw faim afterwardi, was attbe «M --^^1 «-vlS i"* 'T® *o point eut the «an who «aUed wSK^toLii'^ AH tî^^*^^ purs ''^X^lïtt^:^^,^^'^, '» the Lth, and hath ^e5 "'"'*^' ^"'"jAMeT Ï.TS^ 8wo™,taken,andacknowledged,^ «^AMES SAXE. befim» me, on the day, month, I M»d year, and at the 'place f hereinbefore raentioned. , J ' (Si^gnéd) Chas. J. Coursol, J.S.P. 4he!mdemgn5.^aCriïS T^' ^P^'T ^'«^ '«'«r^ ^Mr.SS^.MMrâi^^vHS^*; rdidsoforthe.benefit déposition, ^.î^;:^****^ correetion ï hâve to make m my feet long, i£dl hS Zn wi^i!^ ST*'!.*^. ^ ^® ^»nt aee ^à^^MKi Sn^ ** *^* *°^ "^ *^« '^"'• i»ye iSned ■ **'**^ ''^P'^^'Sf. «»» «ammation U olosed, and I ^wo^^ JAMES 8AX1. «W8 me, OR tlie day, mpnth, ^ JietembemM mentiooedi «pîfjned) y Chas; J. JOCMBOL, J.S.P. ;/.*!, 'i» l'I ■ff-- mi ■10 ■■ •m ■■ 72 «Éft^ POLICE COURT. PROVINCE QF CANADA, i» Dittriet of Montrtal. \ ,thi8^1ev;nTW5^ove2be^ f*cityof Montréal tafcen on oath Eugène Uck^/sS^lr^ ^V""^^ f°^ ^^^gof Samuel offriez MoorrSwS? S^!I l^^tK^"^"^^^ ^«P« ^««^ SamuelSimpson G^^r^i^t M^^ S^*^' ^*P^ McGrortr before nw, S clriÏÏr«?;i Hutphmson, who are now charged» tnited States of AmeLa*rroS'8&^ *S ^^.T' "*<* *^^ TerS,ltlt^^^^^^^^ Scott, Bennett H. YtS^efcaieb Mowf w n ^''T"' ^^«^«« ander Doty, Joseph McSrortr W 7^ ^*^^**'*' ''^*°'^ ^^e^- Hatchinson, on the SeeSfc Z 5^^^"' *"'* ^»«"» ^^ of St. AlbaM, in Zstaté"^ fc Z'*^^" ^î ^'^*' ** "» *o^ of America, be L Aent^dl«!! "*J If.^^ *^" ^^ States ' perty of Uie bant nf <5f a ik "^ aiopesaid, of the mofaero «nd pro- United StaJJ America fm^iî; ÏSj?^ ^^fiont, and the aaid 8eflS8ion,and i^^t^'y\^^^L^\'^^ Çoatody, ,md pos- c ai-i7 away. Agaîn^r a. j^S»^^ S^ S ?^ T^^^ \ n '<: ••.'■* 79 onho««baok,andirLsref^^^^^^^^ Thej were Sert, and Aey iJeofftog^LrtST^ the Street f ey ,een.ed toLin a hï^S JÎ^aît'' SI?-" "^ ^ Young Bhot at me with a revolver fo?-ÎL ÎL .^hepnsoner I stepped out of my photoSaàWn "f'^*^®JPfrty shootbg, and iety^ujn.o//'Sidw tot^^^^^^^^ ^ar'^^.:??/;!'" .. oui ; let É^eiy one of vou walt 3 Tî! ?u .^ ^^,^^ ^*^<* ^ome orderedl^îeytolhC^^^,;"^^^^^ Young thén >ckey threw a botter S„eSSirllf^^^ ^""^S- ^-;|ign ûver tte door of the SS?*^ ^ gaas against the § Wn^up ^e Street, thew kl^£:^, ?""« T^ î^^"' " W^ i^e«, ^ the e^tception of Young, whom i had see^tWe c<«tai»ï;;;iïil^«^^^^^ ^^lar^ that L same »'«#0jj,takenVWaekÀowMged,Y ^^^^^^ ^GROSS. before ma^^to Ae day, month, ( , JJJ^.JW, and at fl» plaœ f ' ''W'^w^ro mentioned. . J *' i ''^ ^^*K^ CtaAS. j. Cm '«"S'e^t^ ^,J^^ «*d ««Ml in the p,4- CtaAs. J. Cainig6L,J.8.I>. «, I- n. .'*. ; •>•■ i it > •I- ir? «V 'v# <;•■ s ■• A \ Ii î '•■El r K 74 At Staubridge.. I àaw them handcuffed. I was amed when I was m Staa^ridge, having a wvolver. > I do not reSw Tmt^ «ning to shoot «y of ike prisoners m StanbriS I had mv •rVu fVj'y.^®'* »o* haodcuffed at that time. I rtàkt hâve aaid tha^ tf ihe man who had shot at me would give ifa?S si^e who, after they had ridden up the street, snapped a rifle atth^ ItwasamanofthenameofGiIflon. «-naeaimem. Swom, taken, and acknowledged/ before me, on the day, month, < and year, and at the place herembefore mentioned. .; Chab J..Q0URSOL, J.S.P. LEONARD L. CROSS. )» fiifl. PROVINCE OF CANADA, DùtrJtt 0/ Montréal, POLICE COURT. The ewninabon of i)anw; Greenleqf Thompson, of the town of Montçeher in the State of Vermont, one of le United sSof Amenca^ clerk, now m the city of Montréal, taken on oath Ûm 12èh fif Noyember, m the yearof our Lord one thousand eight hun. f SI nf M "^"*?"' t *fe ^?^^'* ^^^'^ ^ <*« Court^honsTin the «ity of Montre^, m tiie Dwtrict of Montréal aforesaid, before the underjiged Judge of the,Se88ioi»8 of the Peace in and for the Boid TZvL T"^"^',^ ^* présence and heaiingof Samuel Eugène Ijickey Sqmre Tumer teavis, Alamanda Fope Bruce, OlSes wX^r^' ^!l«' Scott, Bennett H. Youn^Caleb ModÏÎS .Wallace, James Alexander Doty, JofleJ)h McGrorty, SamuS Simpson Gregg, Dudley Moore, Thomas BioubS cE Î^ÎTi^'^' "^ ^?^°* ^' H^tchmson, who are now chÏÏP before me, upon complamts made under oath before me unde^l^e IJmted States of Amenca. and our Sta«6tes in tiiat behalf made, wth having oomœitted wiQiin the jurisdiction of the United S u M®?°^ î* foUowmg crime mention«d in the Treaty betwemi HerAfafegtvtheQn..n, .nj ,x..tTJ,.^^ Ptatri of A moZ : t TuT *or that they, the said éamuel Eugène Laok^S^^ Turieè. %. 7 11 .^, 75 Mder Doty, Joseph Srirtv S, J 2- ^*"**'?,' ^'^«^ ^J«*- Moore, Thomas BwnsZ CoS- î? ^'^^"^ ^'^^ ^^^^I America^ingtiien andïheLl!Z2°^^ of the tlnitcd States of vers, loaded wîth rowde/and bXTn^^ "? ^^ "''""'* '"^^^- (V^s Newton BisC feUfoniv il^ ^'*PP^^' '" ^'^'^ "P^" o°e sid Çyrus Newtor&hon TSî? r'"*''^ T- ^*"^* ^^ him the -then aS there fSonioS?d S tt ^an?I ^^lî- ^*°«^^ ^^ ^ ^«' wit: to the amourTLe„V?hi«° 1 7l^ '"^ of money, to the said United Stl.''rli^::'^i^/T''' r^"'^ '' thousand dollars carrent mone vTfoî^S vA® ''*'''^°^ '®^«»*y perty of the h&nkotitMhS « w ' ""^ t^e moneys.aiid pri re^fcèd byThe ?aws of fc gîte nfV"' T'^t^^^'* «^^ United States of AmeHc^l^t^^t ^«T°^*' ««^ t^e said and there feloniously and violently dîd steJtfke «nd .«î^ *^'" against the forta of the Statutesx)/ the sJXf^^Jv ^^ ^''Y case made and provided imdlZiZ î? ^ of Vennont, m guch The de^nI^Tanlr<^SJ^^^^^ «wd dignity of the dcposeth and saith : rhavrcild th7^' T° ^."'^*^ and filed in this case, pïî^SHohl 1*"°T\P'*^"«^ of the Législature of VeSrinlJL ^ '"''P'^i ^ ^'^«^ ^c*» Albans baâ, .rl7:S^^r Aet^rt^A^S' ^ i*" secretary of state of tho ool/î o* 7 i- 4r ^'^ '^ °™<'0 of the a- .. ol7rk, M ded.tft^Jd'"tl»M'i^^^^^^ I copies of the eaid oriirinal Airt. .«.S? i ^^nr-J"" ""* «W»* ^|ve^«gnat«res of the goven..r and sèc'îtyTia^ ot^^^ conteinS the tnith, ÏÏ X'ed ''^'"* ^^^' *^** ^^ ^^ ^ ■ DANIEL G. THOMPSON. . BWom, taken, and acicnowledged, bofore me, on thf» dày, month and year, andat thg pW^ h o g e. Pdye T-t ", ,S'ï ift f- 'M:^ infteÇM-e mèntionod. 'f* CHAff. J. ÛOIOMOL, J.S.P. > V " ■ " " ■|1 (I , (1 ,^v>^; ;4î;«'V*'' rij lifii^! : r ■ Montréal, 12th November, 1864. DANIEL G. THOMPSON, .*>. Chas. J. Coubsol, J.S.P. / ♦« 5^* '^^^ï'''^.^^^^ he underetocKl there was no fUrther évidence to adduce, for the prosecution, aâ tp the ohar^e ofTbWof the St AlbaM bank &aving closed tïe evî'dence^in thS S^of the «^^ho^ be read to theT^r^ ^ee ^tîerhS' aï^^tft jel for the Crown in the matter; and as they thought k^v^S , i^?**-,-^*"- ^*^« hoped that the Judge wôàld not consider it After some further renlarks, at the request of Mr. Devlin. jZ Srthe' c?::^lirf.^ for «rebutes to aiwTe s S22^«£SS^?^ *^ ''^ ^^ F-cutJSa. Toi^SS^' *' ««eis closed, and we mit àKe thé ^r. i>«,&n understëod that nb further évidence could be adduoed SidW Ibî™**^ f^^'^^inations. If that were to be the mSS ItsK^T^"^'' '"^ '**"^**' the volunury statemen* is the f^yg <^<>ffrf«?A— yrai yon ahev me that ? . ^ Aller "flOniA niH-Ji'lai. AXa^mmai,,^ Afleriadme further diiotuainm/ « •-•» ■ .. il n ) ■',■.'; ** % ?' .,V ^^^^'^f'^^''^^'<'^-<^on fchey had to the volu^tary „ luiS^f^^ aMwered ttiey had none, but contended thafc the tîme l«d not Jet amved for the taking of it, unless ÏE» HoS decided tbatUie caae w« finaUj closed, and that after mroSJ,lZe - WM, no farther teatimony would be permitted. - ^'^''^'^ ****«- *^e Courtoî said that thè EngM courae of practice wm unA^r ea^ oiroumstences, the safest L to Mew^an^ ?a7c(o^^-! .Mr. ^evUn said one of the reasoM for wishing to defer th« If S*!2L::?5r S^°* .'^*^' ^^^'y ««certainedwh^Lrl&Honor ^^e ^««^p-I raie that, before the prisoners are caUed uDon to #ye a^ers at aU, or before the question as to adducinï foXr * SLTÏf 1 î - ^ ^^^. "®^®' «^«>8sed any opinion as to whe- ^•*? ^oJ«ï»?^ examinations are requisite oïnot. buttWt order ^mto be tokeikbecaufle the coSl foS^e C«l wî -expresse^ a ipih to that effect. . - ® ^^^^ ^*^® . VOMJNTARY STATEMENr r ■ ^K' ^ 'î' ^ ^»»*«' 'Sfeiï*» of Amenda fdenimul» ^ PROVINCE OP AnAI^A.) * -^ • !^ > 4f'* 'M ^?^™^«rœii^t^- » 78 ).j(«j»ï»».-tf-. ' ! fr> t . ^ and othera, to wit -^w ' i tT** the said Bennett H. Younr Scott, Caleb McDo^S^wS & .^^'^Swager, Oeorg. McGrortj. Samuel SlmUn^/S«^*°'*''mP^*^' ^^^ aforesaid, in the aaid Stete of V« ^^i ** ?« ^ of St. Albana of the aaid mt^Tii^/^^^\^^ ^^^ the jarisdfotion with certain offensive w^^nfZ '**"*« **»*" »n(|;ibere armed *nd capped, b and unon one C^ Newl^iî^'^r '^^^'^' . make an assaulfc, and Lim, the s^y^Sf fi'î^"'' ^^^^ <"<* • fear and in danger of hia life tî^n S «:^*^°. ^^^P» "» ''xxWy and a certain stm of mdhev to wk . *^r ^'«'^°'»'y <«d put, thousand doUars cuîreS^^^ ^^u^ ï-!, T^"' <1 «event; Aiflerica, and of the virXvifwK^** ?^*^ S*»*«» o^ money aforesaid, of the mTnevà fnH? ^""T^f ^*^"«" ««^«^ Aïhai, a body corporate St ^a ^T^'^^ ^^ *« ^«^ of St. of the said Ste3%nr *n^^'^î '^î^^'^ ^^ *h« 1*^ America, from the pei^n cu^^^^ ' ""-^ ^°^*"^ States of will, of the said CyîurNéwCBlS P?^«^'°?' ?°d against the and violently did steL tdte Ld „ï P' *''^'' '^^ ^^^'^ feloniou«ly the Btatutes^of the S S ^ VeSn*r^' T°«' *« ^^^^^ provided, and aeainTth^?!! ^«^0»* m such caae made and ihe said char^Sg ^ilTtLtidtel'S^r' ^***^' -^ ^ta««?2forjhep^^ H; Yotin& and the James R. Annmgton, Slei A M?" j^'^' ^"^ ^' ^tpea, "Whitoan, Marcus W. BeaSST l'i\^'^^«*»'^' ^énr/ N. son, and John 0'Leai-y-!Sl^«L,? ^^' ^*°'«ï G. ThJmp- the said Bemiett H ^W k I '^Jj "^'"«'^ ^ ^ Pr«8«Qce^ " Having .heard ^e SZ T 1^"^^.^^ "»« »« ^^^P^ ' ;; answer to the charge? Tu i^ Sî llï .'*^ '^^^^''^^ ^ " uniesa you désire to do so • biî^tiSl ^^ ^ «^^ anything, " down in^ wriiing, aad m? be l!^"^'' J"" ^^ '^^ »>« ^« "jour trial." ^' •'^ *'® «*^®" "» endence a^iinst you at •?**■'■. *^'*^WÇ''^-- 'W ■K ^ 79 • > States, to which I owe alleinanpp T ««, „ * • . the amy of the ConfedSTt^tes wTh Iv 'î'frr î* "^''^ ^■ are now at waa-. I ow^ncT^letw' wu ''^''i ??. ^°'*«<ï S^tea Biich mmneAa my counsel ahaJl adV^ mîw ^"^.^^ "»- St. Albana was done bv theftutihnSJTf *-i ^'^^^^^ ^«w done at Qoyèmmenî. X hâve not ^te^^^^ ^' Confederate ' . Canada or Oreat Britob Sî^l?' «eutrahty laws of either were then uider myZama^^ t^^^ t ^"^t^fï« ^"^7» and of October laat, an5 tSlm of 3;I!".T^ ^'^'^ ^^ ^^th Several of them ^re priLnew of ^l7^^^^^^ «^e,#. rai forces, ani rXueTT suci ^^^*tS\"' -^^"^-^ ^^ *^^ '^^^^^ escaped. The exneStion wïS L* . ^^'''ï impriaonment th$ ' CanSa. TheU^ i^U^ L* «l^^. ^^°* «^ Projected ii measure for the bi^barous atrS^iSrft SLiï^ C^! V '^'°' prepared for the fuU deC*^:? mLu^T^T^'' l '°^u^^* ^ communication with my eovemm^nt at R^ni,^ com^^and without as such 9rt&m«mcationi bt^Xted h! i?"'^*'''^ '^'^ ^^^^ by land And bv sea I do i^rïï «î? t^ *^u ^*°'^®® govemment, (Signed) Taken and acknpwledged before^ me. at the Police Office in the 1 laid City, of Montréal, the day f and year above |nentioned. j BENNETT H. ^UNG. / •7 _ wj •wi '^«gB • -rtiî*rw^««^ PhIf , ^^^0^ vCffi ^ 1 ,1 ■ ♦ ! , , fil. *1 1 'i .'"< a'' s . i\ ï 1 s »■ !.. ■  ' it 'lli '^" ♦'•!« ^H , '' ^^l^v ' rfl i v] ( V Mm ^j- 1 ^#1 m <*L^HKi< •♦*^i^^ n^^Hnl ré |P .si' '(^gned) Chab. J.,Cour6ol, J.S.P. jja* « '' ^ 80 'if \ .-O^l lÀesOmaat Young't Commànonê. COMÏBDKHATI SatA-TBS OF AmhWOA, Wab Drpabtmskt, . Richmond, June 16th, 1864. ! ^ ^'"TT?" *" '^^^y mfonned tixat the Président \m «ppointed ^S«.^^* Jie^naat, under the Aèt 121, approved FebruSS^r 1884, m the Pro^onal Amy in the service of the Confederate »tate8, to rank « sach from the sixteipnth day of June, 1864 fnn'îâi^ ^"^ ** *r ^*^.««««io^ advise aiTd consent theretoi you will be comadssiqned accordingly. ys}^^^^\^ ^T^^"^' PÏ«««® ^ conunumcate to this Department, litrough the Adjutant and Insi^ctor General's Office your acceptaBce or non-acce^tance of said appointaient, and, with -your letfcer of acceptance, retum to the A(§utant and Inswctor treneral Ae oath hère with enclosed, properly fiUed up, subscribed, and attested, reportang at Aie same tSne your âge, reSdencerwhen ap^îinted, and the State in whioh you were bora.- , Should you accept, you will report fojcjjify to ■ ^ (Signed) ^ Jas, A. Sed joN, Secretaxy of War. lieut. Bennet H. Young, &c., &c., P.A.C.S. A,J , CoNjFBi^ATB States OF Ambrica, . ^ ^AB Department. Richmond, Va., June 16th, 1864,^ Lieot. B. H. Young is hereby authorized to organi^ for speciak service, a companjr not to exceed twenty in jiumberSi thosTwhT Sef ^''^ "^^ ^ ** *^® *™^ ^^^'^''^ *^ Ckéifederote They wiU be éntitled to ^ir pay, rations, clothing, and tians- / portabon, but no other compensation for any service which they ymaybecaUedupontorender. "^ , . ^ The organisataon will be under the control of this Department. and bable to be disbanded at its pleasure, and the^nemberi retumed to their resp^tive companies. • Jas. A,'Sbdi>on, Secretary of War. I '{• _> 81 ' .> • c#S^'&SSl. l ^OI-ICE OFFICE. V.^ Smmwl Miffene Lachev^ late of the town nf st in. State (rf Vermont, cme Tthe^ited SteL nf A "'?''''' ^ *^' charged before the nndersiimed f^SL ? /**L^«»enca, stands this twelfth day of Novembérfné ^ of ot^ T^i? -'°*^'^i *ight iwadred and sixty^fouJ, foTtîat tî« ^irT '*''V^^°''*^'* l4Màeyand.other8,t» ^Tsennett H ^^ ^^'î"' ^'^S«'»« Teavis, Ahmuinda PoprBruce Ch!L- J''"''^'o^^"^« hunier Scott, Caleb McDowXwa^^; Jal? .^*^^ /wager, George nineteenth day of O^WhS Jst «?♦?* ,^''*<*!?««n» «n the aforesaid, in tÉe é^i^ZSY^liVfJ^^'',?^ ?K ^Ibana of the said United States ^Am^oTlT îï*"" *^® jurisdiction >vith certain offen/e wéals '^dîn^^^^^^^^^ "^^ ^'"^ «™^ monly known abdlalled C^^^ ToS^wS ^ "^^ P'^*^?' «^'«- and capped, in dfd npon oTçh^s^±TL^:^^^^ ?"^ ?'^«' mke an tesaulÇand Eto, the sS^C™ N^^'î ^-Ï^T»»^ did fear and in danger of hi^ life «^^n S .u î- ,^'^^*'P' ^"^ ^^^ and a certain sùm of IneV t^v^ f. r^'^'"'""^^^ P«C thousand dollars curLTmLv «^ '^J- *e amount of sevent^ America, and of the vlrof ^sevLtv ♦i^'* ^a"^^^ ^^^' «f Pionfey aforesaid^of the money ïï nL^T?!^"".""' «'^^^t Albai, a body corpomte Stit^ted^IS^''^ ^\ 'î*"^ «^ S*- of ,the said SUte of ^r^oTïd i'TjS '^%^^'^ Jy the Iaw8 AiSeriga, from L person custodv JÎ t. '*-^ ^""ï^ ^^^^ «f will, of 4e saidVîu^ Newton rIk^ P?'^^^»»"?' ««d against the and violltiy L SS^"J^'^^^^ *^«° \°d there fllofiiousij the BtatuKf the ïïd Sterf vSnr '^'^^r^'- *^ ^^^^ ^^ provided,anda.ain3tLpe!^el^r^^^ thesaid charge leing read te the said s2iel F îtl^*^ '.*?'* witnesses for the prosecution —O™ K «• r**'^®^' ««^ *o Knight, James F^vk^fA^B ï!^ ®^.^^P' F^»^ 0» ' • the said Samuel eS iV^Z^S^^I ^ *^ P^««^°«^ *' mssitt te thft nharge ? ^V^u^^^^!:" ^P.r.'^^J^^thgg^à- unfèasyQtt désire te do so; but anything, you eay will be taken i \ * I \ ' . iV . »' ; Il \l. t i J>f ^A\'' %■ ;; W:- \ ' l. -,l ■' s'a t^ ■ '. i'S I' ■». "'<&t;^ ^a-Sv.--^':^'^^ ^ '*', ■ Whereupon thé^aaid Samuel Mi^me Zat^ saifli «É foflow»- I am a native <^ i^^Q^mî^dert^Ç^^tate^^Wy^SSy^^tr not dewgnedl^buirfey theTortune« , /•' / 7 A.-'. ",■ ' ' ■ \ \ « .1 1 ^ «Et * ■ ^^^^_j ^^^Hjl^. " ■o' 1 ■ ■iMMÉÉHj ÉÊÊ ■iH| HHHj ■■MHMMfeH ' / ^^ ■ ■ ^ ^^^^^^H WÊ lÉjj^^ -Vv *>^ <^ î IMAGE f VALU ATK)N TEST TÀRGEt (MT-S) t ^ / ^/ v^ o .- "a 1.0 i l.l u m ^ tiS, u 1.25 1.4 — 2.5 2.2 6" 2.0 m 11.6 .iî^és^v,' ♦ è i-'"'' t. fegto grapAifc Sdaices CorpQration «•::♦ 23 WÉST MAIN STREET WEBSTER, N. Y. I45S0 * (716) 872^4503 ^^ ^V iV \\ 1» '^ i jSfsSJ-ft-w»! 1 fc^* ' ««^een mj^elf, but aa it is the truth I justify the act as an act of war, though Morrison w^ ?^ T!f *> ^''*i^' '™^'* ^^^ ^^•^ «'^ked behi^d him î hlv^ K,i«^KM r **^ T' ^ T'^ ^**"y "»««l«red in Camp Douglas whilst unarmed, and doing nothing to provoke it. Yankee - S^terAiK"""'^ **"'-S''' T^**'"' P^«l' P«>^«ked the attack on St. Albans as a mild retaliation And fiirtherthe Examinant saith not, and hath signed, Ijie fore- gomg havmg been previously read m his présence. ' "^ "^'^ Tou L (Sjgned) ALAMANDA POPE BRUCE. TakeVi and acknowledged bèfore^ ^«^v^r-. me, at the Police "Office in the I ' said city of Montréal, the day f and yeâr above mentioped. J (Signed) Chas*" J. Coursol, J.S.P. PROViyOB OP CANADA, DUMct 0/ Montréal, OITY OF MONTREAL. Judge of the Sessiomi of the Peaoe in aiid for the city of MonC' I POLICE OFFICE. ;*ti ".; 3dj, and possession, and against the ^i'^1 «'"^^^r? ?t"^° ?^^°P' *^«" and there IloniouT T ^olently did steal, take, and cany away, against the, for, ^ the «testes of the said State of Vermont in suTcase mX| S!"^"^^/',, *f^' the peace aud dignity of the said State }W the said charge bemg read to thè said Charles Moore Swager' and the witnesses for the prosecution,-Cyru8 Newton Bishop, Wward r;^^T *' "ï"? • ^««rivières, Aaron B. Kemp, &nard L. Cross, rames R. Anmngton Charles A. Marvin, QeSge Roberte S^ m-d' ^"^^««"-g^ W-/airchild, John McLughlin, hJ^ N. Whitman, Marcus W. Beardsley, James SaieT Dj^el rf Thompson and John O'Leary.-being'severally exaiined in h^ rfdlow^-'r'^ Charlea Moore Swaler is now^ addressed by Te as foUows: Having heard the évidence, do you wish tb say any- Amg m answer to the charge ? You are njt objiged to say any- thmg, unless you désire to do so ; but Vrhatever |ou say 4l be « ^ou^ZalT"*^^' ^'^ °^y ^ given in évidence aginstyou Whereuppn the said CharUa Moore Swager saith as foUows • 1 am a Kentuckian and a Gonfederate soldier, owing no aUeci- ance to an v government but the Gonfederate States of Ameriol toj tbe navy of the United^ States, cripnle ajid^ïestroy ite shiprinT and commerce, capture ite towns and cîties, and othehme da^gf MB\i me îiously brajH^ h' 87 'I POLICE OFElck ^ederate 8oldier,ao<^.1;Sïv^^^^ did m fte oapacifTern«,;rî^d^<^thT8«TE^%Y/^ °^*^^ «^'ï Statî penK>n,oustUy.andïSC^ny^^^ the • eitK>n, oustody.itod fiS«Zon .^. • *1^"""«»' ^°» the •ï.-^ Év îjv; 88 the pewse and digwtf rfjhe aaid State ; and the said charge being; rçad to the aaid G*a<^»>îttcI>owall Wallace, and die ^rstneises for the gx)aecutiop,^Cyrug Newton. Biahop, Edward G. Knight, Jwne» F. Desriyieres, Aaron B. Kemp» Léonard L. Crom^ James R Annington, Charles A. Marvin, George Roberts, RoeweU A. EHis, George W. Fairchild, John McLou^m,HenryN. Whitman^Marcus W. Beardsley, James Saxe, Daniel G; Thompson, and Jdm 0'Leai7,--:being seyerally examined m his présence, the said Caleb McDowall Wallàce is now addressed by me as followa: " Havmg " heard the évidence, do you wish to say anyAing in answer to the " charge ? You are not oWiged to say anything, nnless you désire " to do 80 ; but Whateveryou sa^ will be taken down in writing Mid " m^ be given in évidence agamst you at your trial." Whereupon the said Ocdeb McDowall WaUace saith as follows: I am a native of Kentucky ; but at the incipiency of the war •w pending betwèen the United^tes aiid the Confederate States 0^ America, I was living in the Stote of Texas, — one of the Con- federate States of America, I owe no allegiance to the United Stétes, but my allegiance is due solely to tiie Confederate States of America. Whatever I may hâve done at St. Albans, I did as a Con- fedetote soldier, and in obédience to the order and under tiie mstn^tions of Lt. B. H. Young,— a commissioned oflfcer of the Confederate States of America, — my commander at that time. I hâve nbt violated any law ©f Canada or Great Britain. Andfurther the Examinant saith not, and hath signed, Uie fore- going hâving been previowJy read in his présence. - (Signed) CALEB MoDOWALL WALLACE. Taken and acknowledged before^ me, at tihe Police Office in the I saidtcitt of Montréal, Âe day ( and yeait above mentioned. J (Siined) Chas. J. Coursol, J.S.P. PROVINOEREte' CANADA, DUtricttjr Montréal, CITY OP MONTREAL. POLICE 'COURT. Joseph McChorty, late of the town of St. Albans, in the Stat<» of Vermont, one of the United States of America, stands charged befow^e undersigned, Charles Joseph Coursol, iiquire, Judge of the STOdons of the Peace in and for the cify of Monlaceal, thi» twelfth dav of November, in the year of our Lord one tàousand eidit hundred and sixty-four, for that the said Joseph McGrorty Md othergji towit: B ennett H^ Y(Mmg, aawwl-BugeBe-Ladkê*^ SiuHpe Tiamer Teavîs, Chariee Moore Swager, George Scott, Caleb McDowall Wallace, James Alexander Doty, Alamiuida /■ A 89 «.d cpped, ta ud ,pon OM Cy™ Newton Bi8h™feSïîd make ao aagmlt, and him, «te nid Cïtm NB,rtm fe.?™ • i^Jïï fe^andj. da„g^of his' llfeThenTd%KSo^t^^'^f and a cer^nUxm of money, to wifc, to the amount of àeve^^v ihoxmnd dollars current money of the said S sS 7f m^TJfo'e'aid'i'îh'*^"^ ^' V*^ thouaand'Sar. c^Sent aK K T ' ^ *^® "°°®^^ ''"'l property of the bank of St ;ff ^'o -^Q^r^^^' «'o»««*«ted anfrecognî^ed C the laws iJ^l^f ^^^ °^ ^'''""°*' *°^ «f ** said United StoUTf Amenca from the person, custodv, and possession, and aiSSaTthe SS'^oie^L't^^rf Sr*'" r^^P' ^" *»^ the^SSuS; ts&t:a^L^Tf^^e^on^n^^ FhTi^-'/' r^ T^^* *^« P^^«« ^'^'i digniVof the sïï sSte ^d ^e said charge being read to the said Joseph Mc^rty andÏÏ ^gnt, Janaes F. Desnvieres, Aaron B. Kemp, Léoiwd L Crosa Si ^„AT°gton, Charles A. Marvm, G^rl fiSer^ rS wwâ,' ^^ ^""T ^- ^'^^' John McLougWiTH W^N son, and John 0'Lear^,-being sererally examined m his di^ST «^f tÏTf «t 'l'T' '^ y^" -«h'to^say aTytïïg'ln anjwer to ttie charge? You are nofc obliged to say anvtWnff «idess yott desu* to doso; but whatever y^Tsay wS b7S «yrtSaT''*"^' ^^ "*y ^ ^^^" ^ evfdence^aS^Lt y^:î J^ereupon the said Jc,*qt,A McGrorty saith aa follows : know^iî'' iîTir^' Tî'u ""y **^ °»y comrades. The Yankee» toow thw, and if we had been captùred within Aeir boundariM J^ÎTvd^v • **^ ^°'™'^ ?' "'^ * »««*»1 territory, and now aeefc Vy Yankee mgenmtjr and the boasted influena» of tE 3 î' «^h!S!!^^**' ^® Oônfedérafe States of Amenoni sïïf tih ï? f ^«"^ ««d «^ «> altegiÉnce to the Œ »tatoi, wth^chmy ooontryiaatwar. I am als» » soidierif i iip II) i r H*V 90 iho Confederafce State» amy^and of tte Bth eorp Cav. EÇtalwa. I WM under General Morgan, in hia ezpedHlNi in Kentaoky.Jaat aummer. I waa wounded tliere, and remained in the State son» weeka. When I recovered firom the effeota of my wound, I reported *o lient. Young, for àaij. Whatever I may hâve done in the cap«r City of a aoldier, I fe^ M I did no more than my duty aa a aoldier, in obeying the ordera of my commanding officer, Lient. Young, a efiw1àeundeMigned,Chlrte8 Joseph ë^ ÉsquîrtT Judge of the Sessions of the Peace m and for the city of Montréal, ans twelfth day of November, in tfae year of our LoS one tfaousand >■/■ i: r 11 !!■ I |V j '92 éight htodred and aixtj-four, for that the said William H. Hutoh- inflOD and othera, to wit: .Bennett H. Young, Samuel Eugène Laokey, Squire Turner Tefivis, Alamanda popo Bruce, Charies Moore Swager, George Scott, Caleb MoDowall Wallaoe, James Alexander Doty, Joseph McGrortv, Samuel Simpson Gregg, Dud- ley Moore, Thomas Bronsdon CoUms, And Maroùs Spurr, on the nineteenth dav of Ootober last past, at the town of St. Albans aforesaid, in the aaid Btato of Vermont, and within the jurisdiction of the said United States' of Amerioa, being then and there armed with certain offensive weapons and instruments, to wit : pistols oommonly knowû and called revolvers, loaded- with powder and baUs, ana^capped, in and upori one Cyrus Newton Bishop feloniously did make an assault, and him, the said Cyrus Newton Bishop, in bodily fear and in danger of bis 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, ând 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 Vermont, and of the said United States of America, .from the pereon and custody and possession, and against the will, of the said Cyrus Newton Bishop, then and. there feloniously and violently did stoal, 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 William H. Hutchinson, and the witnesses for the prosecution,— Cyrus Newton Bishop, Edward C. Knight, James F. Desnvieres, Aaron B. Kemp, Léonard L. Cross, James R. Axmmgton, Charles A. Marvin, George Roberts, Roswell A. EUia, George W. Fairchild, John MoLoughlin, Heniy N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thompson, and John OLeary,— being severally examined m his présence, the said Wilham H. Hutchinson is now addressed by me as follows : " Having " heard the évidence, do you wish to say anythmg in answer to the " chM-ge ? You are not obliged to saj^ anything, unless you désire " to do 30 ; but whatever vou say will be taken down in writing, " and may be given in évidence against you at your trial." Whereupon the said William H. Hutchinson sûth as foUowi: I am a native of the State of Géorgia, and a citizen of the Con- federate States of America. Hâve been ah officer in the Confede- rate army since Ajpril, 1861 . I am not guilty of the charge birought a^gaÎBfit me. I ow© no allegiance to the Yankee govemment. In Deoember, 1862, waa robbed by the Yankee vandab of or Great Britaiiij. I aiù perfectly wilKngto share the foie of my countrymen andvfSllow^ldiers. 'i'i»' «■ «^^,4*i* ''Ù^'A 98 And fartber the Examinant saith not, and hath aigned ihe fore- gomg having been preyioualy read in his présence. ' en V ^^^*î^ .... WILLIAM^H. HUTCHINSON. Tat^n and acknoirledged before^ me, at the Police Office in the I said city 6f Montréal, the day f and year above mentioned. J (Signed) Chas. J. Couebol, J.S.P. POLICE OFFICE. RROVINOE OF CANADA, DMrict of Montrtal, ' CITY OP MONTREAL. | • Dudley Moore late of the town of St. Albans, b the State of yermoi^t, one of the United States of America, stands charged before the undersigned, Charles Joseph Coursol, Esquire, Julge of the Sessions of the Peace in and for the city of I^ontreal, this twelfth dav of November, in the year of our Lord one tho^and e^ht hundred and sixty-four, for thatihe said Dudley Moore and others, to wit : Bennett H. Young^ Samuel Eugène Ljwkey, Squire Tumer Teayis, Alamanda Pope Bruce. Charles Moore Swager, George Jcott, Caleb McDowall Wallace, James Alexander Doty Joseph McGrorty, Samuel Simpson Gregg, Thomas Bronsdon Colhns Marcus Spurr, and William H. HOtehinson, on the nine- teenth day of Octobei- laAt past, at the town of St. Albans aforesaid, m the said State of Vennont, and within the jurisdiction of the said Umted States of America, being then and there armed with certain oflFensive weapons and instruments, to wit, -pistols, com- monly known and calîed revolvers, loaded wijte>wder and balls and capped, m and upon one Cyrus Newton IMp feloniously did make an assault, j^id him the said Cyrus NewiS Bishop, in bodily tear-and m.danger of his life thon and there feloniously did put; and a certain sum of money, to wit, to the amount pf seventy thousand doUars current money of the said United States of Amenca, and of the value of seventy thousand doUars current money aforeMjd, of the moneys and propérty of the bank of St. Albans, a body corporate, constitated and reoognized by the laws of the said State of Vennont, and of the said United States of Amenca, frona the person, custody wd possession, andagainst the wiU of the said Cynis Newton Buhbp, then and ijiere feloniously fi? violently did steal, take, and cany away, against the fonn of the sta^tes of the said State of Yennontii auch ca8e*made and provided, Md agunat the pead» and dignitjr of theWd State; and ^geaaid chtf g^bemg read^*the «uTDadley Moore,^and.ihe- ^^^^ ae pro8ecution,-Cfyni8 Newton&hop, Edward 0. Jùught, James F. Desnyiere», Aaron B. Kemii, fS^rd L^ Ctobs. ■'ht"-': \ ! -'. 'À ! M ; 1\ II 'I!'. r ^. ^■. 94 i- % James B. Armingtoû, Charleg A.idafrm, Georee Roberta* Rn.w.ii A. EUifl, George W. FairohUd, JohnMShuTlSem^ N Whitman, Marous W. Beardriey, James Si«e El S^ ' son, and John 0'I^anr,-,bem/wverX«,î^;;fi^ J-^' ^^*"°P- the said ^^^^}^7 &reirL7'':&:^ " Havmg heard the evideçce, do you wigh to Zl !lJu- • answer to the charge ? Yoi areCt SgS T^^fer ^^UBless you désire -to do so; but whatever C M^y^^^S Whereupon the said Duâlej, Maare saith as foUows : Whatever I may hâve done at St. Albans I did as a Confod«r,.t^ C-aL^tG^^tta^^'^^^^-- TCve^v^ite^r iT^^^ And furthèr the Examinant saith not, and hath siimed the. fori. going havmg been previously read m hfa presenTe.^ ' ^'''" Taken, L'Sowledged before^ - "^^^^^ ^^^«^^ , me, at the Police Office in the I said city of Montréal, the day f and year above mentioned. J (Signed) Chas. J; Coursol, J.S.P. POLICE OFFICE. PROVmOB OF CANADA, Dittrict of Canada, CITY OP MOI^TREAL. ^Thomas Bromdùn Cdlin^, late of the town of St. Albans. in the ), I^!^l^' °°® °^ *^« United Statea of America sLd! t^^'Wf'S ^^ "°^'JZ ^e Mo^ of thesàid Unjted Btetes of America, being then îirid t^STa^ed m&certam oflFensire weaporis and instràmente, to ml Ss^ ^ t I ' - \{ 96 America, «nd of thTvaJbe oTLl^iî *i^** F^H*^ ètates of iiKmeyaforeBaidTof the Zii^rry ^T? ?**"*" ««"^n' Albai, a body iwL^^ffi^S^ P^J*'*^ ^^t^e bank of Str of the W ^n? vSItS ïi!rl^^ bythelaws . America, f«>m the Ser^H^Jl i J ^"^"^^ ^"^^ States of wiU, of tèe «aid C^ÎS^n^^ T^ possesaion, and against the and' violentir^d a tekTlJ^cï^iL *^''' "^^ **»«^ ^«^««îougty the Btatutes of theS SteVof V^JÎ^?^' "«T^* *^^ ^«™^ provided, and HJx^the^ZfJ/T^l!^.'T^ ""^ '"«le ^^ the Baid chargehitel r^Xr.!, ^^*'^**'®«^*1 Sta^s and ' Edward C. Knicht jZJ^l^ '''~^^'^, ^^^P Bwtop, Léonard L. S^ J,ieTR A '""J'"'^;,.^'^^ B. Kemp Gféorge Rober^BoeXA Elt S^- ' S^'fe' ^- ^arviJ MoLSiiçhlin. nen^N wwLr i/^^""^^ ^- ^«rchild, John , Saxe, Cl aThoî^pern^^Sd'joîLTLel ^-^^^> J-ea examined in hia ptisence SiaT;^ îî Leaiy,--being severallr " evideL agîi^rytïr;:^'""*"^' ^' "'^^ ^ ^-- - 'l^^aX^tife^SeSr^ST'^'^^^^^^^ " Sta4. I served unSr the co^LTofl'n^JorMi^^ ^"^' became aeparated from it at the baSe ofC^tu- ^^*°' *°^ Baving eïnded the Yankees T ioinl/T f ^^''°^k^«''*''«'^7- CMcago, knowing it toTmy dutv to ™, '""*"« ^^y^ds It to, my^tf néver to désert iKif <« my govemment as well as so^aied United Stat^ but .1 Tf. J ^ ® ""^ ^"fgiance to the Jhe Yankee Gove^ment'rVî^Yaiï^s^^^^^^ ' bis peaceful fireside and fSv Sïîf ^^Sg^à my father from ^d njy g™n£ather has C^K^^m Kentî^^W T4^ ' • <• iK *. '' ■^ I m M ^ s*" i ^ Pi - ' i:i wà ,m 96 trophies of Fédéral Tiotoriea, I hâve violate no Jaws of CaniMila or Great ^ritam. Whate^f^ I may bave doue ati St. Altitani^I did as a Cofifederate officer aoting under Lt. Yoong. Whea I lefl St. Albaua, I oame to Canada Bolely for protection, I entei^ed « hotel at Stanbridge unanned and alone, and was arrested and handcuffed by a Canadian magistrate (Whitman) asaisted by T«i\- ke*8. He had no warrant for n^ arrest, nor had a&y swôm com- plamt been made to hin» against ne. About $9,800 waa teken firom me when arrested, part Confedçrate boot^ lawÂdly captùred and beld by me as suoh, and part of my owu pnvate iîinds. I a^k tbe rech toration of the money taken from me and my disckarge as demanded by the rules of international law. The treaty under whioh my extradition is claimed, applies to robbers, murderers, thieves, and forgers. I am neither, but a soldier serving my country in a war commenced and waged against us by a barbarous foe in violation of their own constitution, in disregard of ail thej'ùles of warfare as interpreted by oi?ilized nations, and Christian pécule, and against Yankees too wise to expose themselvep to danger, while they can buy mercenaries and steal negroes to fight their batties for tiiem, whoi whilst prating of neutrality seduce your own people along thé border to violate the proclamation of your august Sovereign by joining their armies, and leave them ^en captnred by us to lan- quish as prisoners in a climate unwholesome to timm. If I aided in ihe sack of the St. Albans banks, it was beoause they were public institutions, and because I knew the pooket-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. Fédéral soldiers are bought up at $1000 a head, and the capture of $200,000 is équivalent to the destruction of 200 of said soldiers. I therefore thou^t the expé- dition " would pay". . I " guess" it did in view of tiie fact also, that they hâve wisely sent severalthousand soldiers from tiie "bloody front" to protect exposed points in the rear. For the part I took I ain ready toabide the conséquences, knowing that if I am ex» tradited to the Yankee butchers, my govemment can avenge if not protect its soldiers. «^ And further the Examinant saith not, and hath signed, the fore- ^going haying been previously read in bis présence. , (SigneJ) THOMAS BBONSDON C0LLIN8. Taken and aokSowIedged before^ ^ me, at the Police Office in the «aid city of Montre^, the 4ay and year above mentionéd. ==^ (Sigiwdj Obas. J. CoîJBgcâ^ J,S3*r i5ft*',i.li,t .(«Sfi.. 9T PROVÏNOB OF CANADA, Pùtrictof Montrtttl, .¥■'' KOVUfOB OF CANADA, ) Jameè AUxanâer Doty, late of the town of St. Albans in th« State or Vermont, one of tie United States of AmeS 1^1 5ÏS'i^/''S *^? undewigned, Charles Joseph CoS, ÈnS Judge (rf the Sessions of the Peace m and for the oitv of jCt^î' m"C^' of November, m the year ofo^Ane^^Sd Si Vf^^ and sutjr-four, for that the said, James AleSr Dotv and others, to vit: Bennett H. Y^aff Samuel Si! LacW Squire Tumér Teavis, Alàmanda pSMoe cE! MooreSwager, George Scott, Caleb McDowXlC; J^^^^^^ McGrort^, Samuel Simpson Gregg, Dudley MooreVELffiî t: 9o"»^«' Marçus Spurr, and William^. Huteh^u^d^ the nmeteenth day of Ootober last past, at the to^Ts^' \\hZ ^^r^idllSLfstal^ofr^^^^ ^thlfuris^o'C ^j known, and oaUed lïvolrers. loaded with' ^i^er^^\X Wd capped, in and upon one Cyrus Newton Bishop feloiv dSi SS\S ?^'^*' "^i^ ^ ^^ C^ Newton Kï^rLâî ZTt^^^^"^ ?^ ^ ^« *^«« ^^ ^^^ feloJously mZJ ^d a^oertwû sum of monoy, te wifc, to Ae amount 7^%^& «n^ doUaw carrent moqey of the said United States of^eriSï Sd %/™« ' '^ ""T^ ^^'^'^^^ ^'^ curant min^foS Mjd, of the moneys «nd pioperty of the baojc of St. Albans a b«^ • SfTl*'* conatituted and «copiized by tiSTlaWs of X^i*s^^ of Vennont, and of the si^d Uïdted Stotes of .AmericI ft«m «T pe«on, cuatody «d posse«.ion, and ïgSt thf^ î^ïritî s^rtSr^d^'^P' *^ ant there^So^; S^iSSy'ïS ^'^^\f^^y^^'t^^^^ ^« ^°"" of the statutes of Se said btate of Vermont m such case made and provided. and aal;«l; tr^Z'^'fr'^ 1^ "^^ State ; .SXÏÏ cCge*S read to the said James Aleàmder Doty, and the witoe^ for tî! p,^c«faon,-Cyrua Newton Bishop, Edward a SgC^^ Deanyieres, Aaron B. Kemp Leonawl L CroaT TamiL r a' • ' wfi:^iifd''i^^h^4^^ b;«5T^Î' John McLoughÛi, Heniy N. Whitman, KuTT Bewdsley, James Saxe, Daniel «T. Thompson, andJoCoï^arv' ■-JeuutMverally examined in his presenc^a, the said James aS' __, «w uuv oDiiK«i.to-«av^aa»tlmig, untess yon desi» toUo so : I^whateve/;:j^Ç^i!^ given in évidence «gainst you at your trial." ^ ^ Jt f- i' mih ' l 4,^ ^., ^. A.. s' h^.' I' '; 98 Whereupon the s^d Jame» Alexander Doty sûth as follows: I am a Çonfederate soldier. What I may hâve done at St. Albans. was by oraér of JLieutenant Y<(ung, an oScer in the army of the Confederate StaKs. And fîirther the Examinant saith not, and hâth signed, the fore- going having been previously read m hu'presence. (Signed) JAMES ALEXANDER DOTY. Taken and aoknowledged before^ me, at the PoKce OflSce in thëf ( said city of Montréal^ the day f ; and year above mentioned. I (Sifflûed) Chas. J. Coursol, J. S. P. PROVINCE OF CANADA, JHitriet o/MontrenL CITT OF MONTREAL. POLICE COURT. Samuel S. Oregg, late of the town of St. Albans, in the State of Yennont, one of the United States of America, stands charged before the nndersigned, Charles Joseph Coursol, Esquire, Jndge of the Sessions of fte Peace in and for the city of Montréal, this twelfth day of November, in the year of our Lord one thou- sand eight htmdred and nxty-four, for that the said Samuel Simp^ son Gfegg aod others, to wit : Bennett H. Toung, Samuel Eugène Lackey,^quire Tumer Teavis, Alamanda Pope Bruce, Charles Moore Suager, George Scott, Caleb MoDowalI Wallace, James Alexander Dotr, Josepi McGrorty, Dndley Moore, Thomas Brons- don Collins, Marcus Snurr, and TTilliam H. Hutchinson, on the nineteenth day of October last past, at the town of St. Albans, in the State of Vermont, and vithin the jnrisdiction of the said United States of America, bebg then and there armed with certain offenmve weapons and instruments, to wit : pstols commodly known and called revolvara, loaded withpowder and balls, and capped, m and upon one Tynis 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 dm put, and a certain sum of money, to wit: to the ^mount of sevenly thousand dollars current money of the said United States of America, and of the value of seventy thousand dollars current money aforesaid, of Ûie meneurs and property of the bank of St. Albans, a body corporate, constituted and rect^iized hj the laws of the ma State of Ver- mont, and the said United States of America, from the person, custody, and possession, and agûnst the will, of the sud Cyrus Newton Bidiop , then and there felonionoly and violently did 8t«alr== 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 **•' y^::ï 1- (!..>. S».l»ÇtJ "•ê r{. 99 Anmii(rt(ai,Ch»lMA vir^^' ""™^ I" Cnw, James H. "your triar» *' ^ ® ^^^"^ "* «^^«''«« agaiMt you at WhereupoB the sàid Samuel Simpson Greaa saith as follnw» . I was bom and reared in the State of KentackT ^ ïï ?o federate soldier. My tenn of service ^nn?t«ly'- "^^^a^on- me, at the PoKce Office in the I said city of Montréal, the day, f and year above mentioned. J (Signed) Chas. J. Coursol, J.S.P;- PROVINOB OP CANADA, ) Dirtrict of Montréal, S POLICE OFFm? CITY OP MONTREAL. 5 ^^^'^ yJXSiXjh. ^^^^^'^^Zi^^Z^lf't^^^ - the ch^rged before the' tmderri^ed, (SSL JÎ^V^ctZT^^ "^^ Jadge of the Sessions of the PekceTL fTjL «^Tî^V?'^"^' this twelfth dav of NoyemW,Ttte ye J^^^^^^ lût i i^ .Tt X. , "*^^'*" TiMiace^ ^«Boer Ate m..to.nth d.T of OohL C^puCTiii"^^?' ViJ^" -Wd. in tl^, ^d s..*, of Voîï^kC'JS'JSr âl/Jii.^S |i*aor'(U.*x >v 1 ,«■'!-■ ;-#- 'i J iif (tt^iSj^'^và'^-^-ïa«&&j tii it.; i!w ASk'ïkJlf^fc''. % 1 if 100 of the said United States of America, being then and there armed with certain offensive weapons and instruments, to wit, pistols, com- monlj known and called revolvers, loaded with powder and balls, and capped,, in and upon one Cjrus Newtoii Bishop feloniouslj did make an aâsatdt^and nim, the said Cjrus Newton Ëishop, in bodily fear and in danger of hia life then and there feloniously did put, and a certain sum of monej, to wit, to the amount'of seventj thousand dollars^ ourrent monej of the said United States of America, ai^d of the value of seventy thousand dollars onrrent money aforesaid, of the monejs and property of the bank of St. Albans, a body corporàte, constituted and r^ognized by the laws of the sud State of Termont, and of the said Unitea States of America, froin the person, custodjr and possession, and against the will of the said Cyrus Newton Bishop, then and there felonioosly and violently did steal, take, ^d carry away, against the form of the statutes of thet said State of Vennont in such case made and provide4, anfiafiainst the peace and dignity of the said State ; and the said charge being read to the said Sq[uire Tumer Teavis, and the witnesses for the proseoution, — Cyms Newton Bishop, Edward C. Knight, James F. Desrividres, Aaron B. Kemp, Léonard L. Cross, James R. Armington, Charles A. Marvin, George Soberts, Roswell A. Ellis, Georgfa W. Fairchild, John McLoughHn, Henry N. Whitman, Marcus W. Beardsley, James Saxe, Daniel G. Thomp- son, and John O'Leary, — being severally examined in lus présence, the said Squire Tumer Teavis is now addressed by me as'foUows : « Having heard the évidence, do you wish to say anviidng in answer " to the charge ? You are not obliged to say anytbiag, unless you " désire to do so ; but whatever vou say will De ta£«n àHmn in " writing, and may be gîVen in eviqence against you a| your tikl." Whereupon the sud Squire Tumer Teavis saith as follows : I am a native of Kentuoky, a soldier of the Confederate States army. Ijoined thesûdannyontbeârd of September 1862. I owe my allegiance to the Confederate Government, and not to the infoi- mous and tyrannioal Yankee Government. Whatever I may hâve done at St. Albans, I did as a soldier of the ConfederatOi army ; not on my own resjwnsibility, but in obédience to <^e (xàera of lient. Young of said army. I hâve violated no law of^Great Britain or Canada. And further the Examinant saith not, and haUi signed, th0 fore- going having been previously read in his présence. \ -? (Siffiéd) SQUIRE TURNER TEAVIS. Taken and aoknowledged before ^ me , at the Po lice Oye in the swd^cîl^ of Monlteat, the day^ and year above mentioned. '^ (Signed) Chas. J. Coursol, J.S.P. 1 101 upon the counflel for the TSd S «^3^^ î* ^°'* ^^'^'^ «il other aide had cloeed thel £K 1 . ^I- «««««««en on the the jttdgment ef the CoS' beST hlî'^n î^ '""' "^^ «^^a^^ witih other cases agains'^e pS^n^"*^ '"^'^ '^P^ *« «^ «« ^ow dinl^'dTsis:^^ îT^chZi^st^r'^ «^^7 -*-- with no favor. What wm în il ^*'r*r"ï^v*^T''% '«ol^ ^F» What case did l^hlm^M^r^Tf't^^ ^^ ^ appKcation ? counsel for the Sn^ 8ho.?S «^1f *^ IT^"" ^* ««^«^ *hat the Albans bank ? When Z ff f . ^ ?*^^"^ ">«*, or the St. bank were under^n^d^r^^^^^^''^^^ *H^ National connsel for the defenee^hat 'afi T^ ^*™^^ ^derstpod hj the with, «nd that after ÎCwe« cwî V"'' ''"'? ^ ^ î^^^^^d upon to make their deîl^^inZ^}^îc'^^^ f'^à be called cases of the two banS^ HP^^ ^^^ tmderstandjng, the But altfiough S ^tL îLwK ^"^'"'^f ^«^ simultaneSaly; order to pS Suives in 'pSs^orr^l '" '^' ^*«^ «<ï«' ^ defence, Md discoyer tLïï S ^V*^ *f pnsoners' means of that ià^ mearcluld not bTt rfA'"*^ "^ ^'^ ^^'^ rthe Court to com^i thf .Î2^ subséquent case, no^Talled distinct wJdersŒl b«ft!irl**' °^" *«^ ^'«''««ce. defence was, «lat X^es wÎT. k*^' prosecution and the had already Sd HisXnorS. T^^"^" ^""^^ ^*' «« ^^ correctnessof the assertion. înH *». ^"'^I® Ti" * ^*°e8« of the fact w»8, that tteTo is of 1' T^ÏÏL^^^^^^ «^ '^' Albanô wereprooeedrd S at tbî J^^ driferent banks at St. the defence Là ÏÏe ^ obT^H^! T' ^f ^ ^« ''°^«ï for caUed upon, althoS afthe tim« .J'^'\*' "^"^"^ «««« ^«^ Andnowbecauwofenî *î«- the first was not half finished. other JeSdtSsidetoenf^r' '^'^ ,^ ^e finishedrthe useless for Z^T^ uAT'^'J^^T'- I* ^««îd be Belves and the cSurt ^d to fi?2r »^'T*' *" ^î'^^' *^«°»- défonces, especialIywC theî hS^Î J m^i^T..^*^ ^ différent defence in CmeJlIT(meifo^,^t^^ ^ o°e for tte acoused wS hmST^l^ to dl'T'- ?/ ^-'^^^ reaionable time. On SatoX^-T- *^,/''<*« *heir defence m a had ngi^wd upon aAth^^ilT^^^^^^T^ ^^^ «ides ditionîof it. *X fact Xê ^un*,? fh?r^***'î ^^^^ *''« «on- / / ';ii. \'iS^-^>.;^:^ÂA^ v. m f^ 102 and he was exceedindy surpriaed thia moming to fiad that they were to be teken by the throàt and required to proceed with the defence. He did not think, after the facilities which Ûiè counsel on thw side had afforded to gentlemen on the other aide to co on with theircaaes, that the underetanding with which the cases com- menced ahould be violated, even if tle agreement of Saturday should be broken up. In conséquence of this understanding, Mr. Laflamme, one of his confrères, had left town, and he did not thhik it nght or fair, that it should thus be set aside by the counsel for the prosecution. . V ir • ^*^'^^* <*» *^« par* of *e prosecution^ would say, that he had been présent several days and heard no word of such agree- ^ent. It waa certwnly not known between the gentlemen repre- sentmg the United States, and the gentlemen for the defence. If there waa any such a^eement it must be between the gentlemen ' ''®Pi[?^»_Jﻫ ™e Canadian Government and those for the defence •j j , "^^ ^*^ ^^^^ ^ *^® «*^® since the beginning and con- sideredhe represented the United States generaUy as m. Ritchie did. He (Mr. D.) could therefore state that he was utterly op- posed to any attempts made to obtam 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 which they would go on with the defence. As to the underetanding of Saturday mght, if the defence had been led astray, and if on that account, ajiv of their witnesses were absent, they would be entiUed to reasonable delay m 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 faciUtated. But tie idea of the l.rown of Enghmd^making an agreement with criminals, was a thine totaUy unheard of. He could not enter into any agreement with the pnsonersfor delay; and the reason was that such an agree- ment would npt be bmding on the prisoners. r ■^T\?'''rr^^^' ^' ^.— What has been stated by my leamed fnend, Mr. Kerr, is perfectly correct. When the exanunation of witnesses commenced, there was an understanding to the eflfect tj^ftt the examjnations in aU the charges should be taken before we enlered upon the défonce. That was the understanding on ail hands ; atod my leamed fç^ep'dS on^e other side had at âat time no other course m contenjplatipii: It was suggested to your Honor—or rather /our Honojf originated the idea— that it was better that the portion of the évidence of each witneas appUoable toai^^artjfiHkreharge, should beta^ that havmg référence to other charges. For instance, if Mr 103 ; denoehecouldZS^g^^ opposite, they ?roceeLrp2if;^> *î^ ^"^^^ ^'^^ witnesses giving evidencra^^L?;^ r.u^^ ' «^°»« «^ «»<«e of good effected in thus kèS? ti:. •!'® ^- ^^^e^ a«reat deal weU defined and disS ^^ évidence m each charge so and^'r^' t'^l^Z f '" î??'^'"^°* ^«*^««» ^^^ Crown . ever, and thé ZisoL^Z^n^ ""— f ^ ^? ^*^ *l»« «««^ whî? they are guilt/« Sed %.TTf "^^'^ '"^ Wa-even if gularily of procédure & h^^T'^"" ""f ""^'^^y «»« «^ 'e- upon ; -^nd dl par£ S Lt^T ^T'' Vrovince U> décide ceeded with thew^2 k a Œ«? T' f^"^^' ^*^i°« P«>- is submitted thTt Ct mod« tï:f 1^'^*^^ convenient mSde, it And there is nTi^aTn f^l'^S^fi^"* -fT ^.^^^Pa^ed from. The accused areTi^L S^« ^/' ^^* the conteuy. seven times extradited? ThrobiZ n? ♦î ^''^l' ' ''"*.^^ *W be accused across ttie ^Lr-^l^dTou! ^T '^«*' ^ *° ««*^« would warrant tàeir eSition wliîe ni? n? S P'«^«S» as to «lé necesrà^ of it, and would, the(refore, wish itr to be nndeMtood that I ^ve no legaHpnnrttt as to whetherthe voliintary examinAtion of the îhe''*?!^'^!; tfcjT^' "^ ^ 8t*M«te to gire •fiè^t to the litteadîtion Tieaty, is a p«)per prooeeding or not. Thon îiif %!!^'*^''"^*ï'* ** K^"^"" ^ ^^ *« «*'<«M«<1 » »w«wnable • ffiIïJ*r*ï*^i*.* **'**' **^**^ ««oowiing that delâir, I mus» pt^i^inMy objections to urgé as to t^nL in nSÏ^ wno was the person robbed, and whoee were the efiects The learned jendeman having oited auUïority, went on to «y- ^ Zn St il?l'''lf'^K^* *^*> *^« ^^"^/ «^-««"^ «^ Dank ot St. Albans. New the question to be dedded waa-^had any évidence been brought forward to show that S w JStn DMned t He ^ffirmed there was no such évidence. What had l4en shown was^ tibat an act or incorporation had been Sven tolhe Président, Ihreotors and CompiTy » of a certain' bSk Ther^ was nothing to substantiate the fect that the S ofSt. mZ was the insfatution meant in the incorporation of Tcertair" pSS dent, Directors, and Company." It was hardly neceSïïy to dte auaionties to prove that no corporate body couîd he^ed in .m llT«r^*' '^''P* ^ *^' P"^!^ ^'^ ; in fact^TTint wS the existence of any institution oould be recoghiaed. InlSs CMe hîii nP .5^iL t^^^^ •*¥* *^ *^ argument had been applied to a bUl of indictment, it niight, perhaps, hâve some weight ; CpoUed S.Lriîr"^ investigation of & nature, it coujftve no ÎC ïïiere was a vast différence betw^n a simple/^vesti^tiT of «jJ^^u ^"^""^^ ^^ *^* *^« remarks of Mr. Kerr nmrht hold f^i*^Vî^"'" were hefore tiie Couiïon anÏÏdictSforan offence. But thej were not in that position, and this was rimriy a prehminwy ^amination. If errors l^bW made/they iSd K rectified by the évidence, and the Court could^'Serwctify Tm^our ^ <^ommi^.nt, if such a com^tmènt ffi tn 5X ^' "^^l^^ "^® application for a delay of thirty'days to enable the pnaoœrs to obtain the évidence necessary LU defence ; and m support, of the apriicatiSh, read the followinir «S- w SiF^i^ËâèâB^ Jh^J^tà-jii^^^^^^ i^\f}''%iSi: 107 ■S I' ■O* PROVINCE OF CANADA, ) ; " ^o^.tl^.i!rTo''4x,. 1 ^^^Ï^E COURT. their feUow X^e« btL ^T^T .?"«>«««» and on behalf of dépose and C KdetnTnte'A! T"""^"^ ^«^'^ «^^™' ^^ . with the offence now under^rvefti^i?'''"'"'' P™?°.«" «^«^««^ whioh is necesBarv a^ m*i J!i TÏ ° "^"ï)?''® ''^''^^ testimony are unable toTrSTin Mw ,*° th«r defence, and which they désire to proveÏÏ^ prfve S '^ 'T ^i^T ^- ^hat ïej ^ requisite Lden^e, STe/onrof thf n^'^ '^'"^ *^ P.'^"^ '^' *' is an officer or aoldler of S oJL *^^,Prw<>ne.« now in custody America, duly eSù L^LT^ ^^ the-Gonfederate States of their te4 o^sSl^'^ït;'^^^^^ prove and can nrove if fîm» »1 «ïi^ j\.^ ■'^°** **^®J a^so désire to îhis déponent E;t H yl JTl^^r ^'' "^^'j^^, that day of October Iwt an 'offin^^V A*^"^ '''" °" ^^ imieteenth. StJtes of America Lldh>^^*r °^ ^^ -^^^^ '^^ *^« Confederate tenant i^ SZ'^l mf^J'HTr^''! ?1 ''^ °^ ^* ««"- of the priaoners^Mdyln^^^^^^^ Sd'nTi'^.^^T ^u^"^^*«' ^^ for spécial se^ce, imXTe^. au£nt f "^ T^''^ "°^^^ govermnent of the sS ConfederiT £f. *^ .t"" Ç^^" ^J^ *h« taiy for tixe War^^eS rel^Xa^T^ *?' r^^' to prove and can nrovTTHmn t n . , ^^^^ «^ depu-e po««, tfiat ev^ acTL fî^^ be ^owed them for that pw- ^on the Sroftctoberïf afsî A^^ ''• "^^ '^ ^'^ Vermont, was so done Sr «mîl *" ^^'^' '"^ *^« State of from the said covSe?t TnZf^ ^ .?^'?^ ^'f^ instructions directed by the Srv ^1^^ «'te were duly authoiised and . acting miflT^Z^T^^?'' f^ Confederat^ States com,5tte(i^»d perfomeTi^ coSZl^^Zr *^*« ^^ ^«^^ dents bv whicj. Sriretrtï- td'tftîï' P"^" more than justified bv the a«te Af a^« i ' f"** ™** *^®7 ^^re vi^ and aider Aeôrde«^? L^^^?^^ *^^« ^ ^^ ««i^- U*ed Stetes, and a«1^SliaL? rof*?""^ Government of the iicto of Aese deponeîte^d îf « nî»,!"'^ •***^- ?^* '^^ ^^ nenta ab inforSImd^lieve b^î"! ^'^'^r ^T^ «« ^«P^" Govérmoent of the sS cSfedLte ÎJ? P^^^l^ .^^ '^J^ *^«- «^ &nnitv with instruoC sH^e^ed ?î"k"f ^^5^^^"^ ^ ««^■ .eat for a safe condïcT ^^^^^^^^^^ \ 14 .4^ '&'^fèc^'.AMû-,':^v.*- paJr|iOf the Crown, took this affidavit dewred thirty daya' delay to pKxmre *tae .r *^ f"'*''^ *•*« priwnei^ to oom- no n^t wh'atev«r to interforl it^- ^^ <>' tt»t of C^doda had Crow^^ hère in the t^nSnw/'X: T^ *^V»4^ ■ •I *^4iuarjr casea the oourae was that, after Ae- ^■^ .a ^'i^i- >\ ^;t» 4'^ ■f ;■.; i I .'/>■■ w 110 corne mth 8ome grâce from the couMel for the United âtete^^^ ?Ae cl et Lj^tî^lPT' ^^d««i«^W« to hâve aU the SS niine caae elicited— thus endeavonng to auppress the real facta tw^^'T**"'"' e* iMue-was BomelûngTdyltonisWnL îld En^hman,Inshman,orScotbhmanatit8head Sr^rK^l ^'^<'*»«o« was understood to contend that thev were entitl«H l'^^t^obliZl^*"^ '^'r\^^ ** '^'ï ' but Thaï WsW tZd^nSf^ ^ ''''* ""^ ^'°^ "^ ^^'-^ "•^«'^ V the counseî for T '^'** '^f^ maJntained it waa not a matter for the discrétion of th^ ft^d'ln^r-tr '* 5 *«. P'^'^«««^ of evidenceTiie p^'^of ttie defence ; but a matter of strict right. It was clearlv ki JTwn Jtl^'^^^t «^«^'"««e of «.e Coit of Sn^^S P&i ;:g as by one of the justices of Her Majesty's Courtof OuS Ba^Ï m Londo« a«t a prisoner has a ngÉt^biW fo3^Sdenc?iï received opinion at the présent day is thai it .î S, ^ * .^ Firet^Is it • ^' ^ Jirst — la itjnoninhent onm^ tim niiim«fa«it^ i._ g », ipdictable offence is m course of pMminaiy investigation, te 'iM^MLf:^k^k'- 111 dwcreùon, of what kind or nS f«ï ^""'^T^^ and if any be exercised by him?» f «no- feel that the case Ib not Sined anTS^V?."^ («agistn^tes) tml, avetdiot of acquittai m^fS Vu « ** "^ ^^^ committed for will at once dischargï thTaJSî-lS .*5S """^'T^ conséquence, they to be depnved in this oase-^ETt L ^?\'^«'^ the defenci tain portions of intemati^ law^.lr g^**î *«^ ^ro cer- bnngngforwardthewitoeLescon^^^^^ **»« P"^îoge of Jnng up the testi^n; necell 1? ^ ^f'^^ity, the C^ deman/of a foreiim pLer !S?îî^ 1^.' '**^«°<'«» ''>"t «lat at the fearful of the in4Si^7£;;;t??ï ^ T '^«^ '^ ^"' -'«on! Pnsoners before us xtlr^^ u J^^ *® ^o^ York panera th« ^^wland was extended to thA^7 ?^ '» GreafBritain lu -fil mt \'' m !i 112 m i-sS) «counsel for the Crown showed that they were afraid to encoonter the évidence the defence woul4 bring forward of the oharacter in which the pmonera figured in their raid on St. Albans. Aa Mr. Laflamme had something to remark on thia point, he would say no more at présent. Mr. Laflamme said that the proposition « <^«^em- waaxçommitted aceerding to ti # Lî^''"^ '^ ^^ *''** ^ hQaiJle^«r.f "-'-'-''• -'•*^*"*"« *o lustnictions by a regularly commis- J •'.'^^ iJu^^^ltu / ^: 114 be a remedy, but not under the présent treaty law. Evidence might be produced in behalf of the prisoners every whit as bénéficiai as proof in a case of murder that the supposed murdered lïian was alive. He could see no différence between exculpatory testimony of one kind or other. If the prisoners were entitled to Show any évidence -whatever in exculpation, time must be allowed them ; because if time were not allowed, it would be as well to deny them justice absolutely, and dèliver them up to the American authorities who were hère, assisted by ail the > powers in this country, exer- cising a most unjust and unlawful influence not oiltly upon public opinion, but upon every officer in the public servici^, to make them act not as judges, but tB police officers, in order to obtaîn by every possible means iSie sviîrender of the accused to the United States authorities. If the Crown wish4d to disclaim any unjjust action onits part in this prosecution, and show it was actuatediby fair motive» and wished to see the treaty well carried out, they ought to give full scope to the dôfence, and not begrudge a delay of thirty days for the procuring of exculpatofy testimony. The Croira had resorted to ygrious methods in the conducting of the case^ sikch 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 resuit. But theiûjy|eretwo_partie8 eq ually entitled to justice, in this ca se — o ne ^he Cbnfederate"and th fi.'ôtner fïïe Fédéral tjtates. ^l' he lôrmer had coîBt^ fijf wgt'd claim- ing the e xercise of that "R"^"^ ii ppartialitv a nd' tlfenBenefiror that BrîfiBïnibërtY whicli Jj ritain never denied the reiugee once Hfe enferedUirilâh terntoryl And when thèse pn3?ïneïrtïid reached the^sEéltër oTîE5~Briti8h flag, and were prepared to show, that they had committed nought but an act of justifiable warfare, it was strange to see the Government act as it had donc, trying ail in its power to curtail the efforts of the defence t# establish the innocence of the accused. He (Mr. L.) was' sure His Honor, considering the risk and diflSculty experienced in reaching the Confederate .capital, would not refuse such a reasonable demand as thirty days' 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 eoncurred 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 tiU now they had adopted any means to secure attesdiotoe^ of witnesses ? HonrOTr; Edmonds, wlio speoiaUy represented the U. S. govemment, had declared that his goveni- ment had desired every reasonable means of defence should l)e .f\: 115 ajlowed the prisoners before final judgment was rendered B,.f T th.rty days .ore were allowed, iiwould be si^^^a de-J ,V' évidence. We are notcalled Tpon to «t^^^^^^^ ^ J^"'' ' domg put the gentlemen on the other sidrid S^a S' ? ^ "^ ment on our track. Mv learn3 fS lï? t^ v^®""^^ S*'^®^"" matter of unusual importrce ZoûJ^rk.y^" ^■'"'^'V.^ '' ^ national law, of national honor and dul^"!!^ V^P""' 1 ^"*«^- livesoffourt^enmen. If thèse QueS\ .^^''*^^^ ^"^ *^« ' sideration they deserve, the factsTJLt b.Tli ""'T- ^^ '^'^■ the nature of the caae r^ndersTt evEt tb«ff JI .««««^tained, and them can only be obtai^ed S rL^V A^^^ which must bc followed we ar« „To î\ "^ .^ t^ *^« ^«"te mUes from RicLondrand to rSh t \a^^^^^^ '^]l^^^ f l'600 territory, guarded at evervlTnf bl îf ?^' ^^''^^^^ ^««*i^e denceiJ'lfs8thanthirtrSyr*'Wec^^^^^ î^ ^^^ .«^■ safe conduct had been ^ran^d to "LsalgS' '' " ^" '''^^' ^^ ^ «/wrfjre Coursol.—This ia a verv imDort»nf moff^. » j some considération I shall ^y7:Z^:\X::^^i'''''''''' After recess, Ji^rf^e Coursol gave iudgment as fnllnt» . a application on the part of the prisonera tTohl-n »^ ?^' 'r'^'' month for the production of evidCce fo^ tt Zft " \ î^ "'^ *^"« urgentlyand a'bly argued befl Te thif day This^lnT^^^^^^ h^ been opposed by Mr. Johnson, répresenting^ihe 0:^^^^? Devlm, iiî the name of the American flnfhnrUiJl ^"'^°' '^^^ ^- that although in ca.es of C oSerf CelT?^^^^^ granting such an application, under the tî^«^wJi .P*''^^'' ""^ that power, aa I wo^u^ld be theTeby v^rîuX L„^t°^^^^ diction of the American Courts to tJy the SS T?- *^® J"P^ prosecubon, the exercise of everv riirht to wt;«î^K i .J^ ^^ # UÉn* ,*"* vA..a,kjtt , tii' ■.(«.'jtX.s. J J*ib^ !■'• f^! -«;. 116 fectly satisfiedof the criminalitj of the actof theaccusedàccordingto our own law. Thé affidavit shows that the accused propose to prove that anythîhg thef may hare done wari an actof legitimate yrarfare, and as international law is a^part of the common law of tbis country, affecting the character of homicide and other félonies when com- mitted under spécial cfccamstances, I cannot be prepared to give ' any opinion upon the évidence of criminality until I hâve the wnôle case before me. The évidence proposed to be adduced may not affeôt the case laid before me by the prosecution, but I feel that I should be guilty of an, act of injustice if I deprived the accused of the oppoftunity of placing thèir évidence before me, reserving to myself finally to détermine the objection now made to the hearing of évi- dence, when the case is finally closed and left to my décision. Having thus disposed of thia point, the next considération is what delay shall be granted. The application is for one mon,th, and the ques- tion in my mind is whether ^uch a delay be a reasonable one or not. I hâve arrived at the conclusion that, under the spécial circum- stances disclosed in the aflSdant, to grant merdy a week or a fort- night would be tantamount to refasing the aj^ication, and I will therefore grant until the 13th of December next, upon the express condition that, if the prosecution so désire it, thé further proceed- ings upon the other charges shall be suspended until the évidence 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 remânded upon" ail thè charges until the said 13th day of December next. Mr. Devlin then said he would state without hésitation that the prosecution would not proceed with any of the other charges until this case was finally decided, the arguments concluded, and Hls Honor's décision ^ven on its mérita. Judge Couraol. — The prosecution may do as it thijûks proper until the arguments and the witnesses shïJl be heard. Mr. Devlin.— Yon grant tkis delay, making it,a condition that this case is to be finally concluded, and the opHRon of the Court expressed before we are called upon to proceed on any further charge. I state that we will not do so. Judge Coursol. — The évidence in the other cases will not be gone into, until the defence and arguments in this are fully concluded. Mr. DevUn. — We will avail ourselves of that part of your Honor's judgment, and will not proceed till the case is fuUy determined. Mr. Kerr.—Is the décision of the Court to be pronounced in thi s case ip revio us to going on with any othem ? JuSglCour8ot.--l%m not prepared tb sayso. HyjûagmënTis ^t the évidence in other cases shall not be gone into, till the defence and arguiûents in this case shall be fully closed. *^4.i^ «ï:».*i»ii i.é\âM.' fi 117 . ^r. Jïm-.-Very weU, jour Honor. iaterfere mth j»8tice since I ha™ h Ja^atTthK, »"»«'''? f!'^„¥'^^~^' «re perfecUy convinced of ttaJyour Hoior ' ta^s to'f V S:i ^^ ^«qj^««*«d V my friends'from tire United mu • . n y'-" Tuesday, Dec. 13. Messra. Abbott and Laflamme O D an^ m, ir Ihe accused occupied the petit jury box. tendthatthewhôleoftheproceedingsarewrong. ^ ^; ilT.ÇT't ^°' '^ ^'^'^^ "P°^ ^i« P^poaition. TA. >ra<^^. of ihe Senum .-T ï., objectionls to^y jurisdïction t^ h««. ^r i® objection cannot be disregarded. to hear the exceptions U, my jurisdiction. I am bound .* -m •I <^È^l#%W«r .A, . ^v -r^T • î- '¥' V i 118 Mr. Johnaton. — I hâve no objection to hoar them. Mr. Kerr then eaid,— Bv the Union Act it is provided that the Canadian Parliament shall hâve power to mak^ law8 not répugnant to that Act, or to such parts, &c., or to any Act of Parliament made or to be made, and nOt thereby repealed, which does or shall, by express enactment or by necessary intendment, extend to the Provinces of Fjpper and Lower Canada, or to either of them, or to the Province of Canada ; and ail such laws passed ând assented to by Her Majesty, or in Her Majesty's name by the Govêmor, &c., shall be valid and binding, &c..^within the Province of Cana4a. ' The condition précèdent, then, to the fact of statutes being valid and biudmg, is that they are not répugnant to any Impérial Act which either expressly or.impliedly extends to the Province of Canada. Acts to which Her Majçsty bas given her as^ent after réser- vation, are subject to the opération of the condition précèdent. By the Tr eaty of 18 42, oMoat? extradition, it was provided that upon mu- tuJÎTrèquisition b^ the two States contracting, their Ministers, offi- cers, &c., made, it was agreed the United States and Great Britain should deliver up to justice ail persons charged with the crimes specified in the said Treaty, committed within the jurisdiction of either of the high contracting parties, who should seek an asylum or be found within the territories of the other. This should only bedone upon certain évidence, and it proceeded tosay fliat the respective judges and other magistrales of the two govemments should hâve power and authority to issue a warrant, &c. By this Treaty the contracting parties pledged themselves to vest in aJl their judges and other magistrates power and authority to take cognizance of and exercise jurisdiction over such crimes, neither judges nor magistrates having at the time any Common Law or statutory power to take cognizance of such ofiences. The Impérial Act 6 and 7 Vie, cap. 77, waa then paased by the Parliament of Great Britain, for the purpose of giving effect to the said Treaty, and it was therein provided, that previom to the arrest of any offender, a warrant should issue under the hand of the Secretary in Great Britain, or of the person administering the govômment of the Provmce, signif^ng that a réquisition hal been made by the authority of the United States for the delivery of the offender, and requiring ail Justices of the Peace, &c., to govem thernselves ac- cordingly, and to aid in apprehending the persons accused. It ia perfectly clear from- the principles of the Common Law, and also from the wording of the Act in question, that none of the magis- trates or other officers were vested, previous to the passing of that Act, with, power to arrest or iake ognizance of offences committed =«n foreigff sofl, for *he Act iff question Tras^pawed to give thèm thoae powers, and it is to be remarked that the words of the Statute 'Carry its op as pas sectioi " thei or p com the « ther *' Coû " othe " oper " such " long( of Can Her M March, ImperÎ! and no The Mr. proclain .,v 8295, » Canada "^•By «tl (22nd -^ it 13 pn providec parts of shall sta if the p thoôe of ■came int ,prevail. 12 Vie, General, of the 2 Miyesty ana surr the first, above re sections 1 âabstitutc vas givei *.i. 119 'çarr^ into cffect tho Treaty. This Statute, of course extended ite opération over ail the dominions of Gréa Britab andïstn a^ passed and aaaented to, became law in Canada. 'Cth^ fifth section it was, however, provided that, - if by any law oVordinance " «sioTib'^*'^ '"'-'^ Legislatur/of Lj bScoW or possession abroad, provision shall be made for can-vin? infen « tW^f . 1 ' ^Z*Ht"^'*'*"*'^" °^«<^'»« otfaer enactment in lieu - fefl' rp'î u ^^t^rmght, with the advice of her Pr^y Council, (,f to Her Majesty in Council it seqms meét, but S otherwise,) suspend within any such colonv or tZ^fisinnSl " lontr " The 12?H V*°^'"* iT*^"*^"^ '"^ ^'''' *^«^«' ^^ ^^ longer. Ihe 12th Vie, c. 19, tws passed by the pLrliament of Canada as such substituted enactment, and was reserved for Marcb, 1850, Her Majesty m Council, by ordeh çuspended the Me aurt.-Waa the 12th Victoria sanctioncd ? T: -"fC-— I' ''M » resorred Act. The Order in Council waa t^^iStrr/i tf ^»^°«™»'*tpt^cs proviaea lor by s. 4, ail the enactments n the several acts and I«rte of acte in such amended schedule A, mentionid m SalTd shall stand and be repealed ; by the 9th section itTs eS Itt Lt ?T''°°' °f 1^^ ^«^9«S the treaty, between Her Mwesty and the Umted States of America, for the appréhension ajdsun-enderof, certain offenders.» . By the 24th W Se the first, second, and third sections of tL 89A chapT cT C ' above referred to, wer^ repealed absolutely,^d fof' the sa^d' sections were submitted ihree other sections P^tT,» « J+ !? peaoe throughout the Province, ànd fc^,4o;„ ft,«A:.aT-- %^® — ^a« given the power to take a complaint and issue à warr^t 'J^'^ r ■r~^>- ^ '■il 120 ïïff tte 12th Vie chap 19, and c. 89 of the ConsolidateJ Statutes^of Canada, the évidence in the ôpinio^of the judce or justice of the peace should be sufficient to suetain the chig« ; under the 24th Vie, chap. 6, it is onlj necessaiy to be such^a^ would justifv hi8 appréhension and'committal for trial. Hère then are «rave changes from the provisions of the 12th Vie, chao. 19 We hâve, morejyer, the absolute repeal of that statute by the Act K r^e'c^t^P: ^ ' .'* /' S:"® ^^^^ *' ^«« substautially re-enacted by the 89th chap. of the^Con. Stat. of Canada, but fiJm the very moment ofits repeal the Impérial Slatute revived and remained i force m ut he meant thatv it was in llia Honof's power to issue hia warrant for'^tho appréhension of a fugitive bofore waiting for othor authoritv, or a warrant from/the' Govemor. ïho opposite protpnaion would cause a frustration of justice, and render it impossible to carry out the provisions of tho Treaty. o- ; Mr. Johnson said Mr. KeTr was in crror iû stating that 12 Vie. chap. 19, had been repealed. No such thing. Hé had cited from tho schedule annoxed to the Act to show it had been repealed. But repealed for what — for the purpose of consolidation with the other statutes. It is now rèproduced in the Consolidated Statutes, and exiflts with the exception of three clauses. TJhé 6th and 7th Victoria (Impérial Statute) was suspended bjt proclamation of Her Majestjr, and the 12th Vie. cap- 19 introduced as the law which' ought to guidé the mode of procédure under the Ashburton Treaty. But this Act never was repealed, being rèproduced in the Consoli- dated Statutes. The Consolidated Statutes, châp. 29, page xxxviii set forth that it should not be held to operate as new law, but should hâve effect as Consolidated and as declaratoiy of the law contained in the Acts so repealed, and for which ffiey were substi- tuted. His Honor, theréfore, had jurisdiction "to proceed without a warrant from any govemor oi: any executive authority under the Consohdated Statutes now existing. Mr. Kerr said they did not require the judge to set aside any Act. As long aa the proclamation of Her Majesty, ^ving effect to the amended Act, was withheld, it remained in our statute book inammate. It wanted breath and fîfe to be infused into it by the order in Couçcil. He contended that by thç 24th Vie, chap. 6, the 12th Vic^chap. 19, had been absolutely repealed, and it could' not be pretended that the substitution by our Législature of three clauses other than those assented to by Her Majesty did not alter the 12th Vie, chap.^9, and destroy its force. ^ The Court aaid it waa a knotty point, and must be taken into considération. Mr. Devlin. — You can gp on with the examination of the wit- > uesses in the meantime. The Court. — Not when the question is as to' jurisdiction. • The Court now adjoumed until twoo'cfock. THE RAIDERS DISCÇAROED. • At three o'clock the Judge of the Sessions came into Court and proceeded as foUows to give his dé cision upon the objections to hia Tjœrâdictiôn rauêd m âië ibrenoon :— ^ "^ •s;:"Rat:*i'i1Jf.t^T 123 ' , - Tho pobt I am now called upon to derMn ;« «„« r x importance, inasmuch aa my iurUicL «n!? l f, °'^. '^'^'^ great this case has been put in aueTtim „nH • ^ r^^T *^ *« '^«^ « directly deniod ^ question, and is now for the firat time Suprême Law knd ÔTcdoniaTir- T'^ ^° ^ogarded as thf And that the eZt of lîetÏÏies^'f t'1 p' 'f''^}^^^ ^ it- ding tlae impérial enactmont to îv?e&"r'ï^ri?^° ^T"" aa such substitututed' provisions oftWnlf • '^}.^'^' ««'«"g no longer; necessarily reTved th« nt. • ^ TT*^ '"'^•''•««' "^^ apDrovil was again MceLrv to X^^^^ """^ *hat the samé anâ that the arrest of th^nS 1 ''*^*^ *^®f ? "«'^ provisions, madeupon a tarifs ÏL^b^theX' ''"S ^'^^3^. l^^^e been' ;^^onn..Hng the governS o^C^^ld^aTZte^^S' ^he^m^ the^24tfvLtlf bV'st^^^^^ ^^ '« -^«d tl^at havlng been disallowed briler 41^^^^^^^ ^^°^^^' *°d Friodhad^aaaedlo72bXffL„.*' XTI'^"" twovears which iûwér of iX^aL Zr T if *"®'*^ '''^ ^^^ accused, that it has înconsUtSnaUr VoW ^''' "' ^^"'^ *^ ^«^^^^« «^« 24th vfc^ -^ si:;t:S^i::2s:i^n ^ ^^*r'^^ ^>«^^ interpretingtfe&uses oi^teTn^*^^^^^^^ ''"f Legislatiïrè, and iold that t&s proSn a«^t^? ^ n ^°'''° ^*^' ^ ^ ^^ "ow, I b7-r Le^aCrcIL^ a^e tetr^cTt:' J^ T""^^ ^^^ our^own législature ean origbato I ^ «uch measures as it iîâ^ï^Jl^^t^fî^t^^ -f^K » a national one, nation, anf the LltiT^ctt^Ilt ^'^^\^^'^^ and aforeign m^xm the case ISat ou Sil-^îl.^ "*« ^^^ ^^^ instance, and in the absence ofïS^ ^ *!»" given bv the Que n to the 24^ V?l TthT' ''' ^T"^ *PP^^^ bj the fmperial Act, such as tt ^vL to^ ^^^^^î upon to déclare the 34*1, v1« ? ™^.^ed. I am not called hère impérial authority in a matLrnr no? îi ^ ^ ^'*"'**^ *^ <^bey the :t 3» ' i -'i^' f I 1 ( t t ■ ^ 124 Alter giving to thèse différent objections my most deUberate attention, 1 hâve corne to tho following conclusion :-*- ^ 1. That the Impérial Act pasged to give effect to the treaty ia to be regarded as the suprême power and authoritv, and to be taken as mv sole guide m this case, and that the Canadian enactmmt could take effect only, so longeas the permimve power granted to our local législature has been strictly pursued, followed by the sanction of Her Majesty's Privy Council mspending the impérial enactments, and giving force and effect to our local législation. ^ J. Ihat the 12th Vie. passed by our législature with the view to substitute provisions to those contained in the Impérial Act, did not become |he law of thia Province without the Royal sanction hret being given to it, in the fonn of a spécial approval by Her Majesty, with the advice of Her Privy Council ; and in the tenus ot t^e Impérial Act, the suspen^on was not absolute, but limited to such a time as the 12th Vie. shouldremain in force, and no longer, à. Ihat the substituted provisions of the 12th Vie. havin^ been repealed by the 24th Vie. cap. 19, the provisions of the Impérial Act arc remud, which provisions to cqnfer jurisdietion require the issiung of a warrant in the first place, by the Govemor General, or ^'i® Pereon administering the govemmcht of Canada. 4. That while admitting, as contendêd by the leamed and able gentlemen representing the prosecution, that unless the Union had had m ail matters relating to local govemment, the sanction of the Governor General on behalfof Her Majesty the Queen. is suffi- cient to make a law operative, stiU the subject matter in this case bemg_a treaty between two nations reqniring impérial législation to give it effect the case is so exceptional in its character that I am compelled to look to the propoged Act to décide what is the force of our local législature in that respect. Giving, therefore, to the ôth section of the Impérial Act a broad and légal interprétation, I cannot arrive at any other conclusion than that any substituted enactraent to that Act of our Législature must not only be approved by Her Majesty of Her Privy Council, but also that an order of suspension must expressly be made ti give it effect. ^ ^ That the new provision contained in the 24th Vie, chan^ed very «Jatenany the provisions of tho 12th Vie, approved by Her Maiesty bv Koval Proelamafinna i'annA,1 «rî^V, ♦!»« „J„:— -!• TT-_. __,„,.^^. v^v, j/vovc juuDuiuuon m mese matters, which, bv the terms of the treatv ifeelf, ia conferred upon them, giving such powera to the Judges of our Superior Courts and to the local ^office ra a «> t d o si gnaeed in t lt e 4 2t h Vie, and -tfana, i& wy humble opiMion, the new proviaiona of the 24th Vie. are sub- 125 «anction ofHor MaJestv wSh T -^,'^**^» 7>thout the express effectto tholS vt vi 1?^ °^^"°«^a« ^^s done to give «uspending by lier Maiesl;; S '""^T r'"^"'' of Her Majelty, loni as th^ oLctlîte^^^^^^ - force, and no longer S 94?? v- ***®/f *\ y'?-'fitould remain in to amend the chan M^e 7h /'*'•', ^f^* ^^' '^ ««^^tled an Act (the same ÏÏ the Tith L V -^ '^ ^^^"^^ pealed tho Ist, 2d and uJlhff *'' '? """'l T'^'^^ ^'«^^i^. ^e- Act, and substituted c^ll ' ''^^'^''' ^^ *^« «^^ Provincial This ActhSbeennïï.tL''7 ^^^.^^^^^^ already mentioned. ^.ood ; therS ïhTsÇl^t rS^^^ f ' "•Pfï'^^ P^ ^« vived by such reneal C «1^ • • ^ ^°*P®"^ ^«* are re- fiuspende^i pi$,S of îhe w'^H f^^''^'^^^- Thus the law whioh caïïôvem thi« pLÎT S ^'*. ^Tr« "^^^^^' ^^e only in 80 far as jîriKtL il oZf "f"' ^T'^^ ^'"P^"^» provisions, J^ob^inthfîl^^td^XS^^^ the provisiorof the 4th^' î? ^**' '^ *^^^ but substitute p^vision ^ it^^^^i '*"""' "^ '^^ ^g^'-^^^ «« ^ to be found iithe ïmitrSl i^/'^n*'*' * «^°^V provision may be consideîed comS^- ^^> '^Cr'quently- the repeal are^concerï^d I deem ît m" ? ?' •' ^^.«"bstitute provisions , explain that îhe part Thave lafe t^i^ Judgment, to arrestof tho accused wnT « J ! j ^ *^^ ^'^^^ *° ordering the the moment pSlafoZfKP^'f-i^u*/"'^'^ *« ^^ ^J duty, was committeTSd I S ""*' '*l^ ^'^r "»« *^** »« «"traie thestatute TiSs L^te"^V\'^7-^*''l^> »^« ^«"•^d'» for the timo at tWs late 2^"' f Tk °^J^'''^? ^*^'°« ^««° ^^ised no alternative but ti*de^?«?t S T ï^.t''^' ^ ^'^' '^''' ^ ^"^ for the deciaion of a hiXr /^V i T"^*^,^''''® '^''^''^^d the point f^J say Zrfdi;,^hlve don"^' wte T* T""!'^' ^^^ ^ " formaltydirectcdaffkinatm^f • P}^ ?® objection bemg one person is ooCSéd sŒ^« ' * T ''^?''' **^« «^erty of the ïïmner, HecSe whÏÏ? t Wared positively, and in a definite now deôide.Zt Lîin Al J"^,^«*»on or not. I therefore tound in liw i;«tî«« oî5 r ^ junsdiction ; consequentiy, I am law, justice, and faimess, to order the ' immédiate rilewe 'iitl ,^ I i i^ 4 4"^» 4 t / 126 -:, of .the prisbners frew custodv upon £11 the charges broiight bJfom me. Let tho prisoners be ■discharged. Mr.Devlin.—Before voix deliver that order, I trust you will hear the cottnsel foi' the United States on a matter of such «reat importance. We désire to bring under your notice this important lact, that only one application has been made toyou, and that the counsel who addressed you this moming appeared only in the case ot the bt. Albana bank, which has been the subject of investieation hitherto. You are aware it waa determined tliat only one case could bo proceeded with at a time, and therefore the application addressed to you was for the discharge of the prisoners in this particular oase. You owe it to the gentlemen sent hère to support . what they conçoive to be the just claims of the United States Irovemment m this matter, and to justice alao, to afiTord them a reasonableopportunity of puttitog before this Court the daims of their cUents. When oqly. one application hàa been mado, should it be said that a Jtfdge m a Bijtish Court, where fair play was peculiàrly tobe expêcted,' should hâve disposed of six cases on an application with- regard to one only, without the counsel for the United States being aUowed to mterpose a single objection, or offer a aingle remark. Whàt would be ^d of a Britiah Judée in such circumstances ? The counsel for the defence know perfectly well that such a case would . be utterly unprecedented. They know that, having ha4 the benefit of your ruhng, the Courts were open to them to ohîsân for their chentsthat relief which they had a right to expect. But let them corne forward with their applications. H^ve you not issued six warrants agamst the accused ? You hâve" only one warrant before * vou nowj and only one charge. Therefore, I call on you to hesitate before discharging them from six other accusations which we hâve not had a sipgle opportunity of addressing the Court on. Would you order the disôharge of a eriminal accused on six indictments because ao^uitted on one, without trial on the otheft ? You would' npver sanction such a thing, and this is what you would be doin«r in this caae. As a ji^Jge, you are not supposed to know that the proceedmgs m the other cases are not strictly correct.. If you carry out this order, it will be said our Judges prejûdged caaes. because, whde being addressed on one they disposed of otliers The character of the judiciary for fair play is at stt✠; and though there ar^ in this city men vho sympathizo with the enemies of th« U.S., I havQ. yet to leam thej-e is oné who is jiot a lover of fair play and British justice to ail parties. I willstate my conviction that if the clients we represent hère are made to feel that when t hey enter a Britigh C ourt of JusticA thâtr nUîfti ^m îîôtT>ffTîeïM, wé àust béprépared to submit to the consé- quences. No country m the world has shown more real faimess I ' ■ • 127 lie extradition-TrfuriX to this iosfttdïkw -te '' ^*^' combined to give effect Goyerm^entTlSJZ'ethtr^ ''k f^, "î^ ^'^^^ States extradition righif^rEa^ded^ T^^ ' l^t '" *^' "^^^'^^ *» Isenting our c£,irwiï-bfli^*rï opportupity of repre- . ^: S?uï7Ji;f^^' ' '^^^ no Jurisaiction in this cas. ^m everrpas'e, aa toTuiÇ':S>bt;f ^ '"^'"^^', *^^ ^^^^^^ m Court.~I disch^ge them i/Wery case before mo remarks 3by c^id iS^hT^hr^T^ ^? ^^^« freeSany Court was o^er ^ ^^''* ^' °'''"^« f<^^ t^^^ir benefit after the Crown, which had^ Est in S ^"^ ^ ^epresentcd the Stat'.^'^hif ^a^P^^^^^^^^^ aut^orities^ Ae Lted ' . trust you will aUoJmé ZÂI J^u ^ ^®^* "''*^^°*^ ««"««rn» I a^eJgmeftt^ ^« ^«^« rightiy understi^d ip ai/woS;7T'" ''"^ '' 'S'^' ^'^'^ «^«^ «>«wer Mr. DovJin Jud^entfîùttàrLtL'S^^ "^ \r^ ^«^«'«»« ■ rtpresenlïmr" the ÏEi r^® *^ ««owed one of the gentlemen Ustened to i Zîtt "^' 'î'* ^^^ **^'* ^«"^ would Lve w uMer similar circumstances. Undewtending the fuU ^ t: A T^ ■j.*;rJ.p»:.fr •S*' ^' y :J -. .^. ^ 128 T"" 1^ }'^ responsibility m this matter, and determined that he should perform his duty according to the rules of British iustice , he had corne ta the conclusion that, having no jurisdiction in oné case, he could certainly hâve ïione in the othera. If he had no junsdiction to arrest the accused on the charge preferred, he had ûo nght to ^keep them m custody for one moment longer. Hé knew now, that froip the begmmng of this caae to the présent, «lat those parties had been arrested wifeout any légal warrant 4T^ f* the w^t oï^urisdiction in this m#ter becai^eS^nt', after a légal >5t, desinng to administer Justice in ^ (Sadian Court m the same way and with the same spmt of impartialitv and faorness, as it was, had been, and would be, thaiik God, alwavs S,^i. ""'*«' •'^^^^. ^^ *.."g^* *^ ^^^ ^^ P^oners one mmute longer.^ Having no jurisdiction in one case he had none in ÎÏ! »î ,"' ^""^ ^''''^^- ^"^"^'^ ^^^^^'^ ^ warrant wa« nuU and the whole proceedings irregular. w' «« »u^ Hon. Mr. Bose.—There was no application for the discharge of the pnsoners on ^e other accusations. ^ wï,^\^''"'''-TH*'^ '''*•. î* ^ *^« *^"<7 °f a British Judge, H^^^ite'U'o^nl'sX "' "^ "*"° ' ^"" ^° ^"*°'^' *^ thetïnf ;.tfTh;]X-t"^^^^ Lr ^^^^^' ' ^^"* ^-- „.^. Cb«r<;-^Not a Word more on this matter. I know the weigh of the responsjbihtj of such a course, but I am'bound as a rîS?^ fl ^^5' ,^y conscience and duty direct, wîlhout regard to, mfluences, feolmgs or conséquences. m •Yv m aïways PROÇEEDINGS BEFORE JITDGE SMITH . Lieutenant Bènnett H. Youn.r W TT ir V u-^® ^^^^teen, namelr, ^feavs Charles MooreSwSra^- Sî^.^'"^"' ^^'^''^ ^™«^ airested, near Québec, on C 20th ^f "'r ^P""' ^«^ ^S^^ and brought back to Montrlfli f! -^"^ ^^ Deçember, 1864 ;^enroce%ding.i„%K^^^^ ^The folWing at^ the(îemandfortheirextradC ^' before Justice Smith, oa PROVfNCB OP CANADA. > "" " ' ^utrict 0/ Montréal. $ State of Vennont, one of the United StaJp^Vf .^^^*'^' '° *^ - Î-^^L'P «^ Montréal, in the Sïïict^?'/ j^T'^l *""«^' ^«^ this 27th daj of December, i^ S vel L^''''^^^'>^«" ^^ ^«tt eight hundred and sixtyïouï in tîe P. 71 ^'^-^"^ *»^°««and Mon^eal in the Districfof Mieï So^^r?".^ '^' '^y ^ «gned, the Honorable JamessS ^T??"^' ^^^""^^ *^e unde> ?f the Superior Court ft W c^^T J^ S'' ^"J^^^'^ «^"««««^ ^ m of Squire Turner ïea^s rLr?!rife ^ ^'^^ P^-esence and hear^ Youag Marcua SpvLV^Twïï H H k^^*«^^' ^«'^«t* H. chargea befôre me, up^rcomS ^- /"^c^^Qson, who are now > «nder the pn>visîo'n^P:? ^^1 Sw^^ V'^*^' h.for.ml . -Queen and the United States of A mY-^T ^*'* ^^jesty the behalf made, ^ith halTcoml^r^fK.' «?/* «?'' «tatutis i^^ thaî United Stat4 of AmSa ThTtn -^"^ *^' Jurisdiction of the Treaty between nlrStt L 0?,r^ TT ^«^'^«'^ '^ the Amerîca, to wit : ^ ^ ^^ ^^®®» "^^ «^e United States of "swIïrî^Êlnn^jfe^ Charles Moore H^son, on,the nineteen^TaV ortï^ilr'i' "f ^ ^'"^^"^ H. Hutôh! St. Albans aforesaid, k tKte of v! ""î P^*' ** <^« *<^^ of Statesof Ameriba,Md wiL^n ft ^^!;^l?*' ^« «^ *he United States of América,'bdn/£ anJ ,-r^''*'«» «^ tho said United sive weapons and SSa^^tT T^'^^'^-^oC^ rpvolvers, loaded with powd^V^^ T ii ^'!**'^ cpmmonly , caUed one Samuel Breck flSsly dTd^^*"^ '''^^^ ^ ^^ "Po^ aaid Samuel Br^ r^V j^ boSJL 1. ^ J!? "^ J^*'' ^^ ^im % !_ ^^a certwh sum of mSv. iTJ!!' *™xl '^'^ ^^^is life dîd pufe. \ 1 > «uu # »j!(^î^i V^lgiàisZU')!^»!*» 'i il II m • ri ,:, ri » ' 180 .: of the value of three hundred dollars current m'oney aforesaid, of the moneysand property of the said Samuel BrecÊ, and anotliel- hia co-partner mtrade, to wit, one Jonathan Weathertrae, from the . Person and against the wiU of the eaid Samuel Breck, then and there felomously and ^lolently did steal, take and carry away against the form of the Statutea of the said State of Vermint, and agamst the peace and dignity of the said* State " e h a°d saith :-0n the mneteenth dav of October last, I was fiS- S^W. AiK"**^r^,^"V^'' ^''■^" ^*"^^°g institution known aa the St. Albans bank in the town of St. Albans aforesaid, bétween ' the hoursof three and four o'clock of that day, in the aftemoon • |wo men, étrangers to me, entered the bank. They came up iio the front of the counter. I stepped along to the counter. Thev immediately presented each of them a revolver to my breast I wa* about three feet from thèm at this time. I rwognize one of ' thèse men now m Court. His name is M*r«ns Spurr. I îrame- diately went mto the Directors' room, which i^ adjoinin*'. Isuc- ceeded in cloâing the door nearly, alid they rushed agamst ït and forced it open. The door struck me in the forehead and-lbruiSed me. Immediately one of them named Collins seizèd me by the shoulder, and presentmg a revolver at the same time to my head, and the said^-Marcua Spurr also presented a revolver at my head, and they said to-'me, that if I gave any alarm or made any résistance they would blow my brains out. At this time three other parties came mto the bank, who were then ànd still are strangers to me. The said Collins- then asked me where we kept OUT gold and sUver. I told him we had no gold. He- then asked meifwehadanvsilver. I tôld him we had. He asked me where it was. I told him it was m a safe, and pointed it out to him. Then he, the said Colhns, admmistered 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, arid they then ordered me to open the safe in the I^iwtetors' room. I opened it, and they immediately pulled out two or three bags of sUver about fourteen hundred dollais' worth. One remarked to the' other, " We cannot carry so much." Thereupon they broke open the bags and filled their pookets. They took ail they could cjÉry They took also ail the bills of the bank and the bills oî other; Snks in our safe, aad a lot of money of the UnSted States, commonly known as greenbacks. During the time they were in the bank they locked the door of the bank, and some person came to the ioQT and kn oc k ed &f admi t ta nc e . They^e p o n o d t hfr do or , a nd t he person came m, and this person was one Samuel Breck of St» ^ ■ . . .-«' ^■llk . , , , 131 * , took hold of him and forced him aSlf *^T P"'""^»-- ^W 1»8 money, which he had in hi*°S H?"î*''' ^^'^ •^«'"«"ded question w th them, and said thât it w». ' • . ''^«^° **^ <^«batè the to him, and said that héhad belT ^"' -î" P'^P^""*^- I «Me they had robbed us, and as le y hS Z" '' "^ *^ *^«'°- I «aid giveup thé money. They LShim î^^^'t^' were.obUgéd to • learnt Ébat the amoant thfv S f. i- ^ *^® Directors' room. I doUars Amencan cur°enc7 Thi "" ^T T ^^«"tYour hundred Breck that if he gav"an7alarm f./" 'î.'*u^ . another rap at thf door ^by some ol v "^""^ ^'^' '^^^'^ ^^ Thej opened the door, a Jthe r^rson "^^^T^ *\«''^ ^^"^'^^n. the store of J^oseph S. Weeks Si^ ? '^'^^^^ ^«^ » «lerk in der and forced hi^ in J £ Vre^t rCn^^ ^"^ S^ *^« «houl^ remain there-with the rest of f, 1 -f "*""' *°^ ^^'^«'•ed him to room. About this time iteard 8om« fi •''' -''Î:^ ^^^«P* i» that opposite the window and LTfnto the^XlT ^^Vt^?*^' ^«^^ flons on horseback r din- to anS frl i? ' ^""^ ^ *^«" «aw per- afc the citizens of St llbtr-l2 J^/T'^T «^^S ^evol^rs thèse parties left the bank îea;inîrn^'^.l^^ afterwards three of .us. Jhese aiso left in a few TmVtes 'n* • ^*"^. t «"^^« «^«^ jn^ thèse û^e persons werl rctkTiï c^nc^r^rl. *^/'' r'''^' to the five personswho came ift^+î k ; ^ »""de, of course, robberjasafcresaid,o?wSfiv^t,ï' ^!f^ ^'^'^ committed the one of the prisonei. nfwtl'^d'i^rr te^' ""''''' «P- " Cros8-e£amined on behalf nf ivl n ^^\^^^' been e^„^ed before ofalw^ t^^^^^^^^ ^^^^-^I bave tJuJed the facts respecting thesfmE ni !^® "'^"- ^ de- relàted^n that occaaÎAn fS «• ""f**®" on that occasion, and I ' Albans on thi ^nXn ^rStT/'^^w^ P'*-^* St' SpurT,andComnspresentVpi8t(5^ar;nf^^ «lY^'î' *^« P^^^ner the programme wai and wuR- ""^ ^^*'*' ^ asked them what Confede?.te riS,''dttSe1 1 Tar/ ^^ *'^^ «^^ *^«^ ^-e torobandplunder.M Gen 4aS? K^- """-^ *^ come north chef, was because I suppTd tL^J^^^^ pomts and this was n7ÏÏed of me ""pf- ""^^A P^^°>i^«'»t omitted t intentionalljr or rt!l sL tbat ?T«^ ^^'^ ^^^'^^^^-^ way or the other. I LteàihJf^Z l l ^*** ^<> intention ia iny examination-ii-cff TZ^. ï^tllr^f «'«^ed befi bad was in his tands whWu >L tIkTn fW>?h;r'''Sï; *^* ^'•««?^* X ■:.A - V (Lflltt^JSl 'lTî«I!tW'''à^^ , t,^ M ■}>!. ,:.. I 'î ^^^!â|,ç»i^^£!^ i .7 -^^^ Mreet in wWch the firing waa, runs nearly north and south. There appeared to be conYusion among the party riding abtfut, some riding jm ope direction and some in another. I next saw them after the five had left the bank and after I came out oa the steps Thev were more in order at that time— were coUected together, and were nding north. I could not teU whether they were under the command of anybody or not at that time. They were at the northem end of the bank. There were a good many people in the streets^iihen, more than usual. After I came out on the steps I saw some' shots fired, but not many. I heard reports, but I Sàw no shots fired. I say, on reHection, that I saw some shots fired * after I came out. I cannot tell who fired thèse shots. I think I know pretty weU what goes on in St. Albans of any interest Being aaked whether or no one or more of the party was wounded at St. Albans on that occasion, I say I heard suph reports, and agam heard them contradictéd. I do not know whether^it is known or not who fired on the party.' I do not know whether any citizen fired on the party, and I do not know that I am bound to say what I beheve. I saw a large bunch of money inMr. Breck's hand and he told me there was about four hundred dollars, and I believed him. Being aaked why I state my belief in référence to Mr Breck s money and refuse to state my belief in référence to the finng on the party, I say I saw Mr. Breck's money and heard his statement on the spot^ and the other, I did not see the party fired on, but I heard that they were, and also I heard that report con- tradicted. I know Mr. Fuller of St. Albans. I hâve had conver- sation with said Mr. Fuller. He made statements to me about what was going on generallv. He never told me anything. p*- ticularly about the firing. I heard him make statements genendly but not more to me than to any one else. I heard him Sfey that he had snâpped at them, and inferréd that he meant he had snapped a percussion cap at them. I did not know anything about whSér there was any powder or bail near when he snapped th© percussion caps. I thmk perhaps he waa trying to fire at them, and that his gun or pistol missed fire. Being aaked if I hâve any doubt as to this bemg his mtention, I say that I did not see the transaction. I do not know where Fuller was at that time. I know that a citizen was shot that day. I understand that he was shot in the Main Street at St. Albans. I heàrd it reported that he was shot near the -place where Fuller was trying to fire upon the party. This citizen fell to the north of the bank ; was shot then, about fifteen or twcnty rods flrom it. I believe he was shot by one of the party. The place where he fell was between the bank and the >lace where I saw the party aJl riding off in a hndy. T heligve— I -lôw fërsonally— that there werè other l>ank8 robbed at St. Albans pis k5 L®iu>-Ai., i=! ^'i' th. There orne riding 1 after the ps.. They ether, and under the jre at the >ple in the le steps I but I âàw ihots fired* I think I ^ interest. I wounded K)rt8^ and ; is known ny citizea I say what k's hand, [ believed e to Mr. ice to the heard his arty fired jport con- d conver- tne about hing. p#- jenerally, y that he [ snapped ; whetiier ercussion l that his ubt as to nsaction. V that a )t in the was shot e party. Q, aboat le of the and the lieve — !_, , . Albans • ; 133 same as We had Éeen î dS l?"^.*'''.?^^ ^^^ ^««n ^«bbed; the «et fire to ; llde'rs Jd^he 1^^^^^^^ »-g^ had been ^ Atwood had been latteinDted t h? . ^°*^^ *"•* * «*°^« of Mr. lect of any other r I Jm »» \v\ °° ^^®- ^ ^^ «•>* reçol- . the citizenf weïe^'-take'n TrisS aïS^ÏÏ' 11" " * f "^^ ^^ Oreen at St. Albans on KTc^asion A"^*i^ ^''^^ «ome*time the party was nrettv S' • ^^'''^^- •'"'^S® *^* ^«^ land Mr. Seyiïour wZin thJ^- /'^.P^'^^^^'^ «^ *be tow^. room, when Mr. Breck came .n^ P • ?^ ,*^'® Directors' the party had possesseS themseLs Ï^ZZ *" ^^,'^^\ê i«. and were packin^ un a n«rf !>p -a u ^^ ™^°®3^ ^f thed)ank, that there were five Vth^'l^f '^ \^,"^ ,^« «"'ered. Pfwear -me in. I -et%fat* M^^? ^^^^^^^ thTh''^ ^^ Breck's money was takpn ft^m iT- V j ."^ *'^® "^^nk when man Breck is^ Tthink îe^^î „ £ J ^v°'* ^'^"^ ^^** ««""t^y J-esideci there long enoui^h to bennS^^^^ «f Vermont, because he h^s Albanî I am aware St thpr. ^ • 'm ^^ ^^^^ ^ «^0^^ »* St. ' States on the Steen A of O.Sf * i''".'^ ^^I '"^«^"8 '«^ *l^« United The Northern n^ont niTll Îk ^^^"^ ^^,*' *"<^ «*"! ^^ ^aging there Southen^Xrcaîthel t"^^^^^^ ^***^'' '"' "^" the Confed^La^ Stetes of irri^'^â^^^ i^T ^«^^-^^ m called - teke to assume. Vermont i« nnL r II *^o "''"^ ^^«7 ^"der- Northem section, c^I^temsekes the*Nni*'''%?r'^S *^« war has been ra^nns four or fi il Northern States. This Confederate StS WU /priH ' «'^"'^S that time the ^ The States whichcIafrtotnarTjîrV^Ti"'^^ ^'""STess. yirffnia,NorthandSthCaXa lolJ^^^^?^'''' ^'' but I do not know that she does^nw «^^' "*^*'"~^^*^*°»adid, The State of Vermont Tas ZSrr'* '^ P^'^^^" of Temiessee. tiie carrying on of th4 wï îï^** """"f/ *^^ "'«^ *«^ards Octoberf afecruLg offiTer and stetr-l^r^^'.r^r^*^^"*^ «^ authorities recruited men for thf v^ÏT^"^ "'*®'"' *^® «municipal called upon to do fK,mTme tî, te ^tr*?""^' ^ 'V^' was no money in our hanï iS • ^ , Government. There there was beL^ngto ïe sS^î^v*" ^^' ^^^^ States; but leaying St. aC tre |ttf k'TÎI ^he party, 'after jg^'^. A do W ^^^ bi • •' ^\^ "--ïeTth^^^^^ -r'* bank jomed with the First National b^^k^iu off^ri'ng't t^tZ nul' ■<*? ' Ml ' j&^ j-«jii i^'ii^i^-ffeiv^Hiî- ^'W'x ?! ► *t '■'''> -x^*! î 184 for the money, hj à placard, one ^*''» of their lives and pfoîJerty ^ ^ ^ *"''*'"'* measures for the secoritj fbnL"".»d?pTerut"an"d"rr/:^^^^^^^^ ^- cas. or persons acting ander commissions fromfhl S ' TJ*''.''?'" ^^ ""«""Jderi, to shoot down the TpreS if DO..Z wwu^'!u*^°'^*'"'» Richmond, crimes : or if H b«neoeraîî wJth . Tiew tïthJ^l nJn* »''«/°°"»"«'îon of thei/ between the United Stot^ aid Mn.!^- fJ "P*"" '° ''"»" t^e boandaiy pursuethemwhJwTertïeVmâîuke '?u^^^ *" directed to<.- circumsunces, to be%Vr4idS tVft' be sentTresi tL"** ""^"^ trial and panisbteent by martUl îaw. - *" head quarten fcr \ ^^^^^^^'^^^^'szss?;^:^^^^^^ cuatom is for ail CS nane™ Ji °' ^"^^' dp^uments"?^ The ordinary way in which S^'arTl^^ii^^^^^ J*' '« '"^^ not recoUeot any instance m xXlnuT^ r ^ *^® P^'^^Jic. I do the «New York World " ofJL «;^^ «f General Dix, aa àppears in tliat day, a copv of wWph is noVS * ^ ' ^^ *^ ^'""^ ^«'^«^ «^ St. Albans bankTald Sn^^ ne^^^^^^^ ^""^ t^" were not in unifom but ^n th! ÎT °^ ^^ ^^ Samuel Breck» - clothes, andCe^'t^tst^f thTnrrl^^"^"^^ ^"""^^ ^ «^«i»^' seen in the streets, to whom I Lve Î^S^'^^^'^'^^'^i^^V^rty f northerly direction îCe irZ r «r*^ "" ^'^^^S "^^en o«Z . but I hâve no Personal kZEeô/ S^J caje from Canada ; . fiome of the money taken fW>m fl 1 f,?*'*' . ^^'^^ ^ ««d that had some money on deiSt anHnî ' Î-T^°> say that they ^tWn^ISrtâtor^^ ÇrganWng hostile expédition» of déprédation within our own /uchin . " «y'»""» after committinncU i"^^P«?"»>leto proteot oSr ckl^^nd toU^^„tV'*"i'''°f"'^ having bfcome from robberj and murder. '"'""' '^'°'" mcendiarism, and our people D. T. Vam Bab«n, O.A.A.G. ,^^ commknd of Majob-Gw.iùi Du. • The followlngls the Proclamation: ' HiADdUAnTMa liBPART«MT or TH. East Oateroi Or«fcr., No. lOO. ^"" ^<";* "'ï, £>*cembir 17M, 1864, " portion of De^ÏL^nf GenirÏÏ Ml* '^o/****' *»^'»« disappro^ of that' rar^-^--^S^.r^^?h^ ;tehS^ ---4 pg. for order.. before crossing the ^^^^^^;^^l^^^ Chab«,0. JoBi„, Major and Aide-deVip'^'^^"""'^°'-'^'»A-A.O: .. ■ if' ■ «■«"■• ;|i! ' .vi J- * « » ■ ■ i. Wl 186 pnaonere. ^^"^ '° ***® présence of the Swon, &t .h, .,,„,^™S NEWTON BISHOP. seventh day of December, one ( thousand eight hundred and f sixty-four. I (Signed) J. Smith, J.S.C. • V^^fkLfTZ:^ol'''n^ Tti of Kontuck,. one of the District of Montréal Ser' ,^^n î'i. V"*^- ?^ ^°"*^«^' i» the Canada aboui three w^eks J^ '^'%^-^ hâve been in of that time in prison In thintv trlî f '"Toronto, and a part I say that I knîw ?hem S l^m..nT ^'"•'''"^ "* **'" P'^^^^' William H. Hutehinson ànd SI • ^ '" Swager, Marcus Spurr, this Court. lWrnowîr?w?7fK^"'^''^"'^"'«''^»d"o^h^^^^^ with in Gaol Êere. Twe beenLd ^J ST^ .^° acquaintance aforesaid, were robbed Tcannot^it rt../!'/*"^/*^ ^*- A>'>a«« hâve been in Com-Vl oVerSîb.? ^ ^'''*^ ^>^- «bce I ^^as robbeAhattsirf c\tt e^^^^^ several persoàs thaf *!,« Ka,.i, f? ^ourt. I heard from Mr. D.Saind 3*,^^eX^ roSbed.^^I heard this froS thatanymaS^KbbeTL^^^^^^ the pisoners say notaditth^irSC ^fnr^^^^^^^^^^^ had been in St. Alban^Sharf hiT^T "^^''^^ *«'°« ^^^ they that they >ad tâen the ° o^^t f ^ ïî"^ t''? "^ ^'^^ ^'^ banks, anî thev ha4 taken from tLïd LnW*''' ^A^f^'-t^'^ «^^ ^^^ «"«^ dolfars. I wish to add thïl» ^TT^^^ ^'^^ ^''''^'^^ thousand Thçy never Zd L^ ^^ **'^ °°*^°°'^ "!«« this as robberv conTeSn which tîôT Z^ ÏT '°«T^ "^ n^atteî^^^e And which I hâve hetb tfore ^Td" '^' PT"?"^ ^"^ '"^««ïf' ,^-ch was laat Monday we^k rf^ '•'^'""^^, ''"'' «"^ »^««t 'Pre«ace tha^Tn^ { j ., ^'^^ P^o^ers aiso stated in mv .j^j ' - » "V- i .TM nol in 8t. Albam m tbe monlh of Oolober \ |137 ea«h other 'ind il con^^rT^^'ll^^^^^l t.hW«^ and assUd money f,x>m the banks of sT. a£ and 1"V^' .^'^'"^ '^^ *h« mitted during the continuance cf tr^ii ? '*'''"' "'^ ''*''°- whetîS;;'ard"int^^^^^^^^ and do not know that they were at St. San t^'t^f "' *^'^ '^'"'"^^ *« °>e aiso admitted to me that they w2 fif * ^."'"T *^S9ther. They of taking the monej a«d bumin7 tLt? ^^f'^l^»- Ç^ the purpose Bonerssay, that one man wT^Cdod^on th2 *''' •""'^ ?« î^'" one or two of the prisoners sav thaï fî« i, f ^',*"''n. I heard recollect whîch said it. TalsTheard ?k J "^ "'"'■ ^ ^"^ "°* diately after the raid, they S ^ctf ^T"^"" «"^^ **' i'^'^e- mentioned to me bj one of them tuTÏ j-î "^ ^"^^ circumstances federate army. Tlferdid not tS,t ti'wf T" ^^°» «>« Con- before going to St. YCs and iTav^ t? '^'f ^""^ '° ^^nada ttejhadbJeninCanad7beforeit:\ «"* T' '^^' . saw two of them in Canada frnS If * ?\' ^}^^^- ^ ^^^^ I last, vie. : Mr. Young aSd M?^ ^^ *™*t*^ *" ^^^ '^f August Toronto, and Mr. sZ ât thf "àitko,^ %• ^" ï?'"« ^^ °* ''^ visiting IJ^ey djd not tell mJ that t.;1Zt7 tot%*^^.'"r «^^« their friends. I do nnf tnn Jk ^^^P^®**^", "> oe found by gome of tnne about the ffrst of August^ast and '^ "^ S*".*^"^ ^""^ ^''^ ««* the twenty-fifth of thelS ih l'^Tf l'^^'^ ""t^ about -7 «*ay j epent part ofVS^al ToJol^ ^'^f'' ^""°è J^iagara Falls, Ganadian su/ tL /«"^onto, and part at the that I aaw said yX I cannot s^lS^ î"^ ^'^'^« ^^^^^ I '«« I saw him in Toronto^ untilî?eft%^^'' ï"/*' *'~°' <*« ««»« «neaged in the study of divinitvdnrîî î-'"'' ^°^ *^* h« ^W- didnot appear like a mL 11 ^ ^"""S hw stay at Toronto. He ahK, abouJrhrsretiriïK'^^^^^^^ ?"¥ i°^«* ^«^^ ^0"^ P-n.Iy^fbreI.™ïiS^i'^^ , ■s^ .ii -.' Fil ii;!! rr;»;^ll' ^>HjV* ^■■^-y> ^l'^'ir ' TT ^-BW, -y5»gspjawB^'7y ;'ft^mSi^''k^ef * A* *^^*. '™^- I ^a« told by s'orne of my frK^ W .K °.'.î *" ^^ Confederate soldiera, and^also by S^^^d I Cinfoife ^^""in*? ^Pr"' ^^~ ^" *^^ Confederate ?Z r«^îf io T^ **"""^' *¥ **"**' ^ ^a^ »" Chicago that a raid o^ raids^ was bemg organized therq for the pûrpose of plmideri^ranrî burnrng the Northern tewns on the fLS. f Sraware^tS ■ ft^r'^'^^f ^«^«ïgandSpurrwere m that orga^ation. I Z. aware that large quanfcities of anns and materials^war werê stored ^ m Chicago during tlie month of August last. ïhereTs no reS u"Sfo™ " Kttrt ^-"^^^^ '"'*'^- ^«' theyTn'auC umrorms. It is a fact^hat m many «ases they, the Confederat« - eS' ^r «'"" ^*" ^^^"^^ ^" Uiited States^ 'uniL« In ?h^ course of my expérience, I hâve witnesssed th^ desTïSétiôn of nri vatepropertyby United States troops. I havEeeSSe^A; them myself, Ijeing at the time a soldUer. I & a nVZte ^m, J bur^ng at-Huntevilîe, AlaW, in 1861, sifLr TtatSe^ bh,lo. I was under arrest at the tiine ; a&r ^y releaae I w^ ^^^f A^^^' '/*^""* *°^ soldiers of the tj»ÊÎ Stetes amy h.i^m:^'^ '^^ positrvely that I saw any other instances ofdestA^ knoBT to be true. I saw Çomns in Chicago at Se BamXeltw Young and Spurr. In th^ course of the conyer«itiïïlh^wîtî^ the pnsoners m Gaol, upoà evenr occasion «107^^ me, tjat th^ TlZ'ï n ^^"^ ^"^ ""«^^ ^^* *»^« express ordersof^Tcon- federate Governinent, and further I say L and hâve siimâ the ofZpâfr^*'" '""^^ '"'^ ^^« ' -^ -^ in Wsint Swo.before^^rLt.;5T^^ ^- BETTERSWORTH. . thifl twenty-eigbth day of > • - -December, 1864. : j c^^earr-i: SMITH, j:i:c lA \ " 139 , ' Breck & WeatherbeT and ^^ w °^^' ^^® -^^ ^û^î «ame of the hours of thTlTCfoflT7% t^ "^ ^«*^^«^' ^«t^èea • Albans bank, in L towS tt Alhl""^' J ^''^f ^«^ <« ^^' St. of paying a nito thatSVue b thi brkfX/.' 5'.*^' ^'^^^^ , the amount of the note was fiw» ^f.n?^ ^ î?*' ^^^ ^y <^"'- fi™ r thpee hundred and idnet?thrp! ^ îi"^- ^*'"^- ^ ^^d with me United States, Sara^trduf ï^th" C'd* fT^.^','^- ■ {he payment of the différence \Vh2 t ™*î<^n*» ^ complète I found it closed. I knS at th! / ^""^."^ ** *^« ^^^^ ^oor, opened by a person whô wa^ AV^^ '^'^'" ^""^ '^ ^«« immediatelj^ who had onened it, and^wt had? t-'^î'^^. ^^ ^^'^ «^«"^ P«"on the other Ud he Tau J^me bv t^«'i!^1/ '"^^'^«^' ^"^ with . alonç to the desk, and Se The remtfe l'^f îf' ^^ P»^^^'* °»« waa In the other mm Z t L ^ ^^f ^''^ ^*° «^ *^e bank jnother 3tmnger,Xhad^:i^:ro W^^^^^ ' ^ -* '>y for the payment of the nnt^ i „„ • j • "'^ ^*°<^- The monev thia latter-^strînger aeein^ iZ^"^-J\''y.J'^ h^ ing to ihree hundred^ÏÏ nineÏ^ir^/„^^ ^î'^ °»«' *"»«"«*- money l«cau8o I waa put in frnr ni ,v"?f-; ^ ««^« 'IP ^^ The ma/who stood at Se desk anfS^ 1^1^ '"^"'^ *" ^« «9- " " before taking it, prelted a r^it^^mt^^K^^^^^ ^'•^'" •"«- my person. I do not recollLvZé i *^™S^bich almost touched out;*! b«lieyedhrwLld£r ^'*''^^^^ bram^ Mr.Bishopiiie! rd ftom ïf S^'^T'- ^^ ^"^ the-^eS Tbi8man,Sr^h;sSdh^ w^d^k^'' ^^^ P^«««°*«^ ^'^^^ «ndér ariest, and ïat thev wL p r^ '"'"'^' ^^ *** ^ ^as " askedthomiftheydWni.?» r po^fe'J^rate soWièrs. I then private properfy. Thi mon^ Sfi? *"^ ^*'®"^'^ «'«P^cteS ^ . 1 -^-did-aot, aad a« j .^1! il t t| il ■ .f! ». 1 ifl m a T ^ r# bB £é'H • 1 « ■ ' b9 .r: ^B ''(-' i^ii ■f "■is'*!,»tWio^jto '(4v>'4ié^|^ ii'vma mf^^^^Fwy^^^^w^^^^^^^^s^^r^^^ |y ■1^ 140' Wd m civW clothes. -I did not tell thêm that the money I K.^^'^^nùtipnvAte property. After takbg thîs money from me one of the^ed mensm kept his.hand on%j shoulder^ ISi ^ed m^ mto the Director's room, tW ifl.he.shôved me in This armel ma^thB,t if I att^mpted to escàpe, or giyeany ÏÏ^he » woulS^dïrtsrQe. 1^ wa« the man that took S/Sy Sme " l^^^^^^'^'^'f^ bWmybrainapnt^incoU^ence' of this threat, I remwned quiet. I was kept in thia stSe for ' " t^Mr. w iT ""^ ^-P^^'t -^ y*"^S «^«^J^» *>^ teleghiph opemtor ^f.Mr Weela' came m. He had alao a package of monefin^ •^and, he made the remwk fliat it belongeito Mn Weéks, Ld ttS " IS^ BtMjugjer, or »rmed man tlm^took my moûey, took bis money S' fW V^T^f *°.7! ?f"*^'î' *^ set away, and the amedmÉS ^d that he should not let the telegraph operator go, and that if ho l^«t?^ Sr ^ *^° S^^P^ office, hewould have shoTwm on room, gf»ringf^,to understand that if he did not,'^ey would shoot ' h^ ' *"^ iW ««'^««^'^««ce, remained. Tbey r&UXt tW SjSr''T;i,*^n*^* ^î»7 intended t» bum the dépôt, pubh^ - fir.frf ' *fu^ the Governor^a houso. Soon after, I héard ahots" from the bank of the sajd armed mon, one of them soon afCwent Z ï 1 A r n ^? **»« V°t o«t- Mr. Bishop then went out and I soon after foUowed, and then saw Vpariy of ho«emen riding north. Tho pnsonor, who gives his n^me as Squire Turner Teavis I recognizeis one of the two armed men who tâ,k my money ble ^tiï!ï^ aforesaid, unon the nmeteenth day of October last paat. Oross^amtned on behalf of the Confederate States. -I & S If" vi" TÇ' 'r¥,.** ^"^ Y<>^^ Herald, pubUshed in the '' N^l vT n"^®" Ti?. Pr«?ïa"ation8 are publishSTn the city of New York Oeneral Dut is in command of the department of the tion publMhed m Ae said paper préviens to this date, and f présume f%l P^.ï^t»on. »n t1.e number of the .New York rferald of the fifteenth matant; is a copy of the proclamation in question. S . appears m the first page of the said paper, and is stateî the SnenJ pq>er în «fie UnSeî States. It is the pra^lhere tTi^S proclamations and orders. in the leading papers. Bemg MkÏÏ r 1/ ,.,'A :Lm£& '^^^ii' l:' < I . monej as aforeswd. f K 4*f '^' '^ ^ ^"^ that took my othe^ banks at the town nf St A*,^* "^^l ^«^ taken oui of thi acting linder Gênera IX i^d & 7*"" ^«^«^ate soldiers aoney taken f^ifi-afiCS^d nVii^^^^ "''''**^ »™«t- The tod 4 rert of JitSri^d n*if^K*"î ^*- Gitans bank bilb! ^^k i- ** .***^®'' '''*»'»; and furthei- T 3r ^ be forôgoing depositioi havinTienlS Eworntobefo^«e,iXnt^,, ^ ^AMUEÊ BRECK. . (Signed), J. Smith, J.S^. . ' pf vt^if^i^Sf ISr^1«*- A^^«^ - the State jn the çi^ (îf Montre^a^ uj^n his oS»!!"""^^^^ *'^'^' «^"^ '^ow town of St. Albans afoi^s^S on the^M^'^T^ ^^ ^*^g ^^ the î«tpa«t. Onthatdarîwen?otrl'^S!*'!?*^^^J^°f^^^ ^ betweenthreeandfour^thra^^i **', '^K^treet in St. Albana. on horseback in Sie^r^et I^w^Toi^^^ the St. Albans bank, w& is ZTm^ ^"^ """^ ^^j;ods above directly after I went oS oi^ „? i^'^ '^''> °^ *^« iid'-tpjm : genU«m« I was conveSniA tZaTtÛ T ° ^«"* "P ^* fi«m him his hat, sayW lhTw?I J^f*""***"! *°^ deideS. «mrades. Mr. NettffiheStatiTil ^««' ^ft»*- one of his ^ . «lat he could not lose hia ha^ hïïiên .nS^*"^ then rem^rked, ' Jt,^aymgat tibe same timekarhe^^Tfe?*^l^««^^^ - refused, and the same time this ma^ S h k }^ ^^^"S'» ^^ ^e vett, and cocked them Z «LS îu ^•'"«^«''^ -i >?:!' a ciy for hein rï^lrfk*^^ F™"' 4^ this tfine banks; theaetw^ .en ij^elfS^^^^^^^^ /'fl :<> ff; .. ■<" 'li ' l'i • / ' l'-i «<. .» 4 . f; .' 142 Sri^'In'"'' ?V^/ î^^°l^¥ At thetimethe second man rode an irfult AÉ this the man tl^at firet rode up, poinfced two «ï volvers at me i^d wished to know if I had aïy aS abouT^r , I 'emarked thai I hoped he would not. shoot a^ unprotectedSn 2fnT.™^r*.*^ ''r°'" ^"^ ^^^^I^»" unannJd.^ AfterS t-Z — r °^' f ^,^ ««^«r ^as given from soL oTof the m^^ to feU m Jine, whioh thév did as welï as they could, and heÏÏÎ ^^rafewotS";^^^^^ Sg mm a tew others. I saw Captab Conger withà gun wîii<.rïf ^ ^PK\««/ t'ying to fire at them, Sut the gun Sd not 1 off Thèse thût.had fonned in line.and headed down tle streetllf U5 ^ aT 'l llr^l'^'^J^^h at saià Captain CongI^^d Ws cid^^ About th,8 time there appeared to^be one of the robC who tS not mounted ; he cal ed upon the Captain, as I supposerto furdsï of Puller/s hvenr stables, and demanded Mr. FuL'a sadff îo 2 déwp a horse that had just been rode into town by a Mr;|m?Éh and was then stendmg m fmnt of the Tivery stebW Thf ma«: norse, toid him that if he did not comply he would shoot 1.5m ïteK^^/^f-'î^^'^'H*^^ horsedowc. ^6.i8mÏÏadarevofe «rh.8 hand which w^ cocked, and which he prpsented at the s^ddler The armed man rode by the aide of thesaid saddler kee^nTtt; revolver pointed at him inost of ihe time unThe 'cam^f aSv op^s,te to where I wa. standing, and where the mal L wlft o^î the party At this time there was an order given by some onTS the armed party to throw Ôreek fire upon a buUding opZite where I vas «tanding; by this time the hSies became m^^ rf)le from fnght proba%, and the armed party fired sev^^ffa " at citizens m différent directions. Some of the'^shots sJkwTr? sTfe'IÏTnmT.'^^^^; T ^*TÏ *« ^«^nerof the sto^Œ suc feet from where I stood, and I saw the. baU which wm picked up by a gentleman standing near; they theh rode ouUf towB irregularhr, and that is the I^t I saw of them S ImSà tC "Wr- t ^ V^*Ï*S ^^ ««"««^ fr°« the time I firs'Hîw them untd thôy rode off ; they were ail dressed in citi^ens' cTothw and I saw nothmg about them to indicate .that they wer^ soSeM ne pnsoners, Beimett H. Young, and Charles Ke Swtti M ^at I hâve rel^ed took vfTS^Z^^^^^ St. Albans aforesaid, and in the immédiate vioinily of the baX. ■sÊmm-. ■■ Ai "%.. !1^?"--':;; , *•" ' .-■„ i: i-",, ■- 143 ; . ..Bfainheard's Btore? T^e^l *,' «rder given to do so on Mi-. WÏen Captain ConJ cime nnl^îî^î/*'^^? ^'^"*^'^e store. to eoUect in the street ThL! « u rlf *''*'''®°« ^«''e beginninî m St. Albans At that- til fT' ^^^"V^'"^^ t^ousand inhabitante . townabout halfli hoî^ ^b, tw/^^^ P*^*^ had :been in the r ■ habitante "had XS but&i «^AT/r^^' "^ *^« '"- " as précautions were tafcen to Wvf!f I- 'î ^\ ê^a*®' P^^ion, : At that time they had s^JS Kl •***'?' }^ ** armed partj • ^f^., and^diS^mÎ! St h J ïal a^Sr^*"? "1^^ ^^ ' ^t any one waa shot bv the vollevs T Zï « !» Idonotknow ^ there was a soldier of the TTnîLI hW ^^ ^r®<*- ^ know.that * (Signed) • J. StoH, J.8.C. "~ V - <>fore«aid, andWn3S?ti^'„Ç^'"^? «• mch in Vement evidenoe in L, S» '^''•' ""> iare heard aU th« Jo«ph T. BoltemZthfanfoeo^TE^ ^^"ft.^r'" |wk. V. n: . *l .'-^ Ai <> • " •« "/ , >» ^^;. .■;| ''■ -^* • ■ ï-iWi \i...??M(^" *. „ {!■^^P^s<|^i^^l'cp|lfnpp^PfP|IIP|; y["r and recognized by the laws of the toid' State of Vermont in force on the said nineteo9th day of October laat ? Jinewer—JI):^ did, and do now. yuestion.-Accor^g to the laws of the said State of Vertnont m force on the said nineteenth âay of October la«t, w»«ld the fe^te frnT^;%t ^'-^ '^'^^r ^""S ^«°^« the^chaî^f of TobbTi? against ail of the prisoners above «amed ? ^ „/"Tc;T? ''^'*^^'. J'^® volume now produced contains the gênerai Statotes now m force in the said Saté of Vennor^S which were a^o m forceon the said nineteenth day of October C I am acquajnted with the seal of the said State, and with the^gl natures of the Govemor and Secretary of the said State and I déclare that the seal affixed to the certificate written on the leaf immediately after the page seven hundred and ninety, and between the Acts and the index, ,s t^e seal of the said State and the s£ S'^aid Si.? ''^7i"^'^''' '' "^^ «•S°^*"'« of theGoveior?f the said State, and tiie signature, " G. W. Bailey.iun » S the signature of the Secretary of State of the said State of^erlnî Cros8-examned on behalf of the Confederate States.-The of- fence committed by the nri^ners would be cognizable by the Courts of the State Courts of the State of Vermont. ïhe U^ted StaS Courts for the D^trict of Vermont would hâve no prim^y jurisdS taon over this offence The State of Vermont, there^forrî^ th. T? P"T^ J""^^^*'^'^ of the crime of robb^ry comiïïS^d b , IniM^^'^t^r^"^*^*^'*- T«^a«'Califomia;£nsas,lSr and Mmnesote, hâve been admitted into the Union sS the Ta^ eighteen hundred and forty-two. I know that an Act of ConS Z ^i '"^ the seventeenth of July, eighteen hmidred and sK two, chapter one hundred and ninety-five, entitied an Act te sul press msurrection, and to punish trea'son md rébellion, toseizeS shot't itffTht '^ ''^^'^ "^^ ^'' ''^'^ purpciesSTct thr.»Iln?. ' ^''^ aiiyperson engaged in-wïr, ^committing the cnme.of treason against the said United States is UabirtS imprisonment and fine, and the property of that inSi^ tuMe te coi^cation tosatisfy the fine,both real and personaWrtÏ i refer for explanation of the said Act to the co Jy of the Acîprinted "» VJawrenceWheaton on International uï,'' pages 600 601 and 602, which I hâve no doubt is a true cbpy ^^ ' ^^' ÇM.«fïon.— In your opinion, should a (fetachment of United States soldiers, under the command of an officer in your armHo ^ bke acte to those charged against the nrisoners, ;or^dTLr^ and officers bemg then m Georgia, woulâ they be g\iilty of roSery^ (Objected to by Mr. Devlin. Objection overruled) ^ ÏT^^'^^Tf^'^^^' ^^'g'* « a State in rebe nîbnagfinst the constituted authorities of the United States. War Tg^^q , 4- ^' *I k. * ,. .■• (*■*! ff 1 146 I do not conBider it an act of treason St «i^S^Jf!? v""^^^" Quettion.-^Do you conaider *!,« /.Si î tje btate of Vermont. the other parties, K Wh of |t S' °^ *ï^ P^'»^"' "^d October l^^è^lTe^r L! « ?T',°'' thenineteenthof treason agaiitTMledStetesl^ "^^ déclarations together, as (Objected to by Mr. DevKn. bbjection overruled ^ he^iTiTttw rui''&'''''î».«-o-t to .d'.d, <îoinfort ? .. ^"^"^d States, giving them aid and «pnaoïi. I un aware dut Jade. ÎI.iZ V»"" "«"re «irag an Court of tte UmM S&^''fl"k"T^îM*'' *■- âlso. I bave "see^ the"';k cX «£*p'^ï'^,f 8%>°»an is - published bv G P p7,tnr™ JJ^? u ^® Rébellion Kecord." Conrto of VeS I Wo^n lita S 8»™mah." ' In fte th.» », «Tidoiw, in ind S SJZ» "V^ «<'I»â^«l^eyidenoe ; »ho .1 One «me c««nd^d rt^^ OrW °l?L'''îl"'<î?'. V «P-tation, M,d luiTe »,i, iim Bfe Sn^^' ^^^ "^ fl|; ■' '*' 1 !•• II -M SHfi. |.'< I II' îti i il i) V A-. „;*i'-. ^feÂlii- Ml X^T- "^V 146 Aruwer. —Hav'mg givei^upthe money,under the circumstance», not to an agent of the bank, he would be liable to the bank. And further I say not, and hâve aigned, the foregoing dépositions hav- ing been taken and read ici the présence of the prisoners ■ o ... (Signed) EDWARD A. SOWLES. owom to before me, at Montréal, this ) ^ ' , twenty-nlnth day of December, 1864. ) \^ i "^ (Signed) ^ J. Smith, J.S.C. Mr. Bethune. — This is our last witaess. Mr. Kerr. — I bave a poii^t to submit as to the jurisdiction of the Court. But as I was not aware last evening that the counsel for the prosecution would hâve finished so soon, I shall be ready to- morrow moming with my argument as to the jurisdiction. 1^ rr ^ . ^. Friday, 30th Decl, 1864. mr Kerr for the pnsoners^bmitted : \ 1. That the» Province of Canada was but a corporation with powers limited and defined by Imp. Act, 3rd and 4th Vie, cap. 35 the third clause of whicl^ wàa in the foUowing terms. ' Fropi and after the re-^on of the said two Provinces, there shall be withm th$ Pi^ovince of Canada one Législative Council and one Assembly, to be severally constituted and composed in the manner hereinafter prescribed, which shall be called "The Legishitive Council and Aperably of Canada ; " and within the Province of Canada, Her Majesty shall hâve pow«r, by and with the advice and consent of the said Législative Cotincil and Assembly, to make laws for the peace, welfare and good govemment of the Province of Canada, such laws not bemg répugnant to this Act, or to such ^rts of the said Act, passçd in the thirtv-firet year of the Reign of His said late Majesty, as are not hereby repeaied, or to any Act of Parliament made or to be made, and not hereby repeaied, whioh does or éhall, 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 ail such laws being passed by the said Législative Council and Assembly, andassented |o by Her Majestv, or assedted to in Her Majes^'s name by the Goyemor of the Province of Canada, shall be valid and bindi^g to aU intenta and purposes within ûiQ Province of Canada. 2. The conditions preoedeoi then to the validity of Provincial Statntes, were : first, uut the^Bhould be for the peace, welfuTand good government of the Pirovmce ; second, that they should not be répugnant foae provisions of any Imp. Act tlien in force-, or wWch Aer éaft e r mig bMS»^p M 8 ed. — ^"^ -—-—^ — nT- — 8. By the lOth article of the treaty of 1842, between G^eat r -Ti É^^àdf^ix&^^^-i^Ài-L'fiJ^^ï é-. '^ V- ,'i^^ ii^-^^a^y^ r^r ^fr,r -_*ir . - î **i ^AsMf J" Y a< 'k^ K4£^.>U.,^ÙI 147 ■ ■ , Britain and the UnîtAd Rfo* -i crumnals in certain casJ^eWd b^;^ J'"'^^^ extradition of M^^teg respectivelj. •'"™*'*'°" '" *^«"* J-dges and thfeir Ma^tSÇs in^Cànlda, were thetffi ' *°? *> ^'^'^««« ««^ other «««ng wterants to appS ï i^S'^î ^* *« Po^«r rf the (forerftor Geneii'g ÎX^iîS'"'*^^^^^ »Po° the issue of sition for extraditionïïd b^Tîïadf ^^ «^ormatio^.that a reqdl f^^o7Z.t.t\Xl::^^^^^ 7ih Vie, cap 76, n. Wl Législature of Jny British coïr^'^ thereafter made bj the VMion shaU be made for ct^J^i^V'' ^^"^^^ abroad,V ♦olony or possession, the o^S^^e ZTaI^^!^' within'lb Iwl'^^r. "°^*°»«°t » lienlJîeorlt W ^ *ï.' substitution with thé advice of Her Eri^r!«« i z-^" ^®' Mdjesty mieht Council it seems meet bïï^YtheS ^'^ *'.^*' Maj^in ^ colonj or po8sefl8ion,!tf^^î;£^^ '^^""^ ^*hin any Lb hament, so loniri^mwh »Eh?/^® ^'^ ^^'^ <>f the Imp. Par- the^re, ^d no ifnteî.» ?'^^«*'*«*«^^ «nactment contiûues ij fj^; Wt o; SaTSeTL^ VXtM *^ ^~^'^«i»ï Parlia- rS? "^ *^,^ «^<» ôth SectionTf Se eVAiW'"^"" *"^ I«^«r » tte ewly part of 1850; Her MjSest^h Jî^^^:' ^^P' ^^ '' »«* pended the opération of the iL Kt^/^ 't' "^ ^""«^^ 8"«- 8aidl2th Vie, cap. 19, shoK'in îoU^ .a"^^'. '^ ''^'»« «« th^ 8. By the 12th Vie. cao 19 An '^^^ "^ ^®«g«'- ™jntpreceding the CVa VfrîanTbTJ^ 5^' *^^ ^<>^^™or'» waé done away with, and any bne ofA- ÎV-'"^«®r û^giatrate, Peace throuZ)ut the IwSje t«f f?!.,'^'*î*«^' ^' '^«"^s of <£ rant to exai^e witneieJ^d ^Xf' """"^T?^^ *<» i«ue such y^. J»ati«;beingmade,ïe":ol'a:^^^^^^ «Wffolly preserved. ^ ^'^ "** *«»«. 19.- 16. By the Pnfvinoial Statnte, 24th Vic., cap. 6, tiie first tlùnse clauses of thé 22nd Vie., cap. 89, were repealed— and tfaree otiwr clauses 8ubstitute4*4hereïor. By the 24tii Vie, jarisdiction in cases of exiaraditî(A wtë taken away from tilie Justices of the Beaôè' thronghout the Province, and vMted in certain other officials^^lKe words iun the first^tion of the 2^d VIq., cap. 89, " witii haviag «looùmtied ivithin the jurisdiction of the United States of America^ or of any pf «ich States, any of thç «rimes, &c.," were changed to "jrith having coiamitted vithin the jurisdictiim of the Vtvâîà States "of Anienca,iiny pf the i»unes,&o.,'Va«d other changes were made relating to tiie suffioienoy of the évidence. 16. No order of Her M^jesty ru Counoil suspeading the opènir tion of the lB)p. Aot duiiog the ccoitinuanoe in force of tîie 24tàx Yic, cap. 6, wA9 ever made. 17. By the'fepealmg clause of the j24th Vie.', oap. 6, three of the five clauses compoaing the 22nd Vie., cap. 89, (we re^enaotonMil; of the 12!lih Yio., cap. 19,) were repeajea, leavîng in fact but one olAuse,which was siimlar to one of the clausesof the Imp. Aot|ilMi and Tti) YkKi thàt the enacl^ent substitnted (the.w^^to of tiie Act 12th Vie., cap. 19) had o««Bed to be in fomït^.aQd tlke Imp» Apt 6th and 7th Yio., cap. 76, under it»own im>vision0;«Dd ^Hfiig- >^ifist^ • ^4 roràied. Mr.jSdk»ti0 c<«t4endéd tliatf our legislatinre had fiiU power io legislate upon this subject irrespective of any treaty or impérial .j^y^ £^K/èr"<*«\ t^S^^v ^^k :/ •»¥ fcr the M31CA «Iifcïï '®^''**«'e 8h«U hâve po^r to iaak« iam «•"«Ml bï the Crown 3 rt^ÔLlS? i " "f^,?" »" ««««"les ' «Sied atnfinS^n of Ito &" Thi,: A^b r f *^ î^^" powtroo this sabiect did n^JlfeT f« Ao*, m refermg to onr STeû ™, bat to aCeï^iU^^^xS^^^ '^ .bei«|thereby Impérial Aot. Th^wimiinff o/#W a£ î *«.IT'"« '*^*® «id * '• îf '.•îi& ^-3 / 7PPP»"^R? ? 160 other nation, and ^t ifc iga nùùMnry fer fche Crown, in good faith. to^ke caw that sTour obligatiobs wew oarried out fait&uUy. 'If the législature of thia colony did not legislate Buffioiently ïn the matter, the Impérial Parhament could aîwaya step in and sapplr ail deficiency 80 as to answer fuUy the purposes of àe trcatv. fhe Impérial Législature reserved to itself the right to see the èolonial enactment before it would suspend its own enactment. There was nothing illégal or improper in the Provmcial and Impérial enaot- mente going on together; on the contraiy, they contemplated suoh a State of thmgs. We passed an a«t in 1849, but it did Sot require any sanction from Her Mj^esty in order to makelt kw. As the act 0^ated a machinery of our own, for the sake of convenience. our egiskture left it to Her Majesty to indicate a day upon whioh this Itreaty should corne in force, in order that if she thought pro- . P«rto suspend the eperation'ûf . the Impérial Statute^ thei^^d be 1^0 confusion, and that we should alway8,orin the meantime bave some law m opération. What was the language of Her Mjyesty, as appeared by the Canada Gazette? «By virtue of the autiionty vested in me by the Provincial Act'"^— the act of 1849 passed by ouiMegislature. This was not surely the authonty of a mère Corporation. Her' Majesty's power of sus- pension existed as long only as our statuto existed. As to the argu- ^/?* *^î, *« l'npenal Act revived on the repeal of the statuto ot 1849, the chuse Mr. Kerr relied on was the 6th of the Act rj^pectmg the ConsoUdated Statute of Canada, 22nd Vie, chapter k- u .u ^'J?"^®. P«>7»<}«d that on and after such day as that on which the Provmcial Act should corne into force and effeot. bv direction of the Consolidated Statutes of Canada, etc., aU the enactmenta and parts of enactments mentioned in a certain sche- dule shodd stand and be repoaled, "save only as heremafter provided Nowi as to the argument that because the 12th Vie chapter 19, was embodied in that schedule that it was therofore' pï^tî'*'^'**?!*^^^" *® ^''^ 12**^ Vie, was embodied in ihe tonsohdated Statutes, a new statute was created, it is to be noted. TkÏÏT'SS? I^- ^^l'.f^' " T! ^"!,^ »" hereinafter provided." That the 8th wction of the Consolidated Statutes enaoteS that said Conjwhdated Stelutes should not be held to operate as a new law, ^ but as a consolidation, and as declanitoiy of the laws contained in^ the aota so repealed, and for which the ConsoKdated Aots wère sflbsfatuted.» Her Mwesty had no power to do any thing more than deal with the whole Act. She had déclara that the Impérial Act would be suapended as long as the Provincial continued in force, and no longer. But was it to be argued ^H» wjt wa« iuûended W the tegi^^ sequently repealed. The Act of 1Ô49 stUl exists oir our Statute Uook, as amended, but amended in a verjr small particular. Upon - ^viifcSi,i.>â£*^rijl^<'--«#-^i."4ÎâiM n 161 jwer given under that ■ peaoe, and dving "Tstrates. TÎere le whole Act of place, it being ^ ^' HerMiyesty or order in Council nearer to the Impenîtt^LSuJL^^^-^î!^-^^^^^ law, by takjng it away from merejusêr it m heu to judges of aesmons, and ati ' • îïïo v !. T "'^'^*^ «*■ *« Impérial ^ o«n • !r ^®" r«pealed by us, whidhi Btill m the Statute Book, and but slighrr al Her MaiMlv'. h™,). Snr*.*'*'"""'^"'""'? confirmation Th« eraminaSon of Ho mtaesws in tho caso of «i« rokb^rrof MTegtBet haying bei >en preoedëi or General. pri ri îndffl ¥ 1 w a ro ffi tj i t. o^lliii;"-! "^^ - ^ ^ ^^^^ t.->& -^w'âî :;-4. i^ï- : •': / (1 k ' r' '■•1 i;' ' '1 1-.' :^.-j.": .: ! ■'-■■^, li 162 " That mj warrant havinc been ùsued without such authoritv. i ;y al^t<»gf.ther lUegal, nuff, and void, and that ihe priwner wàs entiued to his discharge.'' "The argBment was, that thefe waa w law in force in this rro^ce, under wbch such warrant co^ifâ legaUy issue, except the Impenal Statute 6th and 7th Victoria, chanter 76 : Là that such law imperatively required the authority of the Govemor (mènerai, before such arrest could be^madcj and that without such authonty the warrant of arrest was altogether illégal. " Jn support of this argument, the Counsel for' the prisoner stated several propositions. « Ist. That the arrest and delivermg up of persons accused of cnmes, was entarely within the scope of Impérial authority, and beyond the junsdiction of a Colonial Executive, 2nd, That there was no provision by common law, or by the ' comité ofnation8,toeflFect tins object. 8rd. That this matter is regulated entirely by treaty, between mdependent nations, and that the only treaty which regulated this Bubiect between Great Britain and the United States of America, 18 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 détermine the rights of both nations, on the subject,— and that the starting point in the settle- ment of the question is that treaty. The Ashburton Treaty waa finally settled by the two Govem- mente on the 30th day of October, 1842, by the exchange of Ratifications at London. * By the tenth article of this' treatyjiit was" agreed, « That Her Majesty and the said Umted States should, upon mutual réquisitions by them or their mmisters, offiCWB, or authorities, respectivelv made, dehver up to justice ail persons, who being charged with the cnme of murder, or assault with intent to commit murder, or piracy or arson or robberv, or for^ery, or the uttenince of forged paper, ï comnutted withm thinjunsdiction of either of the high contracW parties, should seek an aaylum or should be found ^ithm the terri- , toiy of the other." Provided that tht should only be donc, upon such évidence of cnminahty, as, according to the laws of the place where the fum- tive, or ijerson so charged, should be found, would iustifAWs appréhension and commitméBt for trial, if the crime or offencJLd been there confflutted. And tha»;*he respective Judges and other MMwtrates of the two Govemments should hâve power, jurisdiction ^^jjthont y, upon comp l a in t m ad e under oath, t&iaaue & w ar ra nt ^ for the appréhension of thf fugitive or person so charged, so that 'M 158 &o., &o., &o. « """ge or Magistrate to certify the same, General, or person adminïrb^ S '®*^ ''^ *^« Govemor ;ueh an »PpKation,h^Teen iad?K^TT^''*^*° signifythat dehverv ofïuoh offender mdSlt ^^' *^f ?^*«^ S*at«8 for thç if ?/^ w «r^ïilXt'b^ei:*' " i; ^r ^«a, .,.» Legjglature*of anvBritiah colonv J ^^^^"'"^^ V ^^^e local shaU be made for cari^ïïbt com^iiTT'" ^^"'^^ P^oviaion or possession the obS o^f A^ S'Î! ;,f ^^-T'ï^" '"«^ ««lony to a treaty between'Her Maie-tr.n^ ?k ^S* ''] S"' «^^"S ««"ect 7, for the apprehensbn o?celL o^^ ®^^« ^^«"«r- ofsomeotherenactmentbheuth^lf Tr*^^^' ^/ *^« substitution jje advice of Her P^vycZ^^^^^^^ it seeins meet), suspend withb an vl^h ^' ^""^''^^ ''' ^^'""«i' opération of the saiî Act ofîh!7 ^^ .''^'^y °' possession the suehsubstitutedenTcti^nLl?^ ^".P^"^ ParUameît, so long a^ Under a»e auSitv of tlT «Tf "^ ^^''^ *^«'-"'^' and no loniT ïrei^ty between fier M^st InH îï ir -.^î ^'* rospecting the for the aonrehension ^? surrelr of ^'"?- ®^*^^. ^^^"«^ca the 12th Victoria, chapter 'i9 ""^ '^'**'" offenders," being of t^tp^â tïïtJtre ttd rbf ^' "«^' ^^ P--- ^e in practioe, partdculLv n t ïi ^"^nvenieht in this Pro- authority of the oivS^Sr^ w ^^ "'^"^ "^"ired the oould be n,ade ; and iSeîeï bw^^^^ *"^* «f l criminal Aot, it is enaot<^d thatTb^^v i5n ^ '*'*'^" °^ ^ I°»Perial »«Mle bythe local le^riSuS a J^^^^^^ provision shali be mad« fnr «« • ^^ ^^^^ ^^^^^7 or possession tbewH»f, Her Ma Jtv milfT^S^.^ ,^^ "^^^ other^nac tment in heu îf fe ».. »#-.. "T-. J «««HWWiui tû^ wuwnt of Hct t*rivy Oouncii:^ tf to Her MiuV^v in SnnTnr**^ *"*"*"* ^^ l'my CounciT •wiig as sucù substitutedenactment éonî' \ i S « /ï 154 H% . t '\i *!pT S,/T®' *^^ °° ^nger ;" and then follows the ehactmeçts of the bUl doing away with the necessity of the Governor Geaeral's warrant. ' ioS^^îh ^*^ ^'f'"® ^^ *^® ^'^ ^^^ '* ^*8 provided that the Açt 1 Jth Victoria, chapter 19, shall corne into force upon the day to be appointed for;;that purpose, in any proclamatîon to be issued by the Uovemor General, or person administering the Government of the JProvince, for the purpose of promulgating any order of Her Majeaty, with the adviee of Her Privy CouncU, suspending the opratïon of the Impérial Act hereinbefore cited, within this Pro- yince, and not before ; and thifl Act shall continue in force durinff the continuation of the lOth Article of the Province, and no longer ooi »rPT^*î^**^'*" ^^ ^^^ ^y *^« Governor General on the Jath^March, 1850, and was published in the Canada Gazette at that time. < . '7*u''^r-®'**^®^ ^° Council reqiàired by the fifth clause of the 6th and • 7th Victoria, Impérial Act was paased, and the opération and ' :authonty of the Impérial Statute 6th and 7th Victoria was there- tore suspended within the Umits of this Province, and the 12th Viotona/chapterl9,became thé lawvof the Province. "^K • , y ^eeffect, therefore, of the passing of the 12th Victoria, chap- ter ly, was to oarry out more comjdetely the stipulations of the treaty. By tRe lOth article of Ihat treaty, jurisdictiop was given to the^udges *nd Mrfgistrates mentioned in the treaty. By the Impérial Act 6th ând 7th Victoria, it waa enacted that before thèse Judges or Magistrates could act under the lyeaty, an autho- rity trom the Governor General waa hecessary,— so far as this is conceraed rt was a departure from the stipulation of the lOth Arti- cle, buppose the 6th and 7th Impérial Slatute had enacted that the wwrant by a Judge orMagistrate could not be enforced, except a preyious warrant had been issued under the hand and seal of the principal Sécretary of State, surely it would not be contended that such an enactment would not hâve been contrary.to the provisions ot the treaty, and that it, would hâve frustrated the very object of the treaty so far as fhis country is concemed ; what possible dif- >L 1^^ î'^ ?* ™*'^® *** *^® "*™« ^^ *^« Governor General is irab- stituted for that of thefiecretary of State, so far as mère convenience 18 concemed ? The Governor Generar,^ho résides at the distano«i of one thouaand miles from the Western extremity of the Province, and the Sécretary of State who résides in England, are in a similar position ; and the preamble of the 12th Victoria, chapter 19, déclares that the provisions of the Impérial Statute hâve been found inoon- vement in practice in the country, and that it m necessarv to change them.»^ ^ This Act, 80 reasonable in that partioular, was passed without objection, and it was not even a reserved Act. It was \ i^ai|ê|^iUi^^^syg|;^ 157 mation to thafc effect. • "^ Victona, and a Procla- tained in the 6th and 7^ Vie Lî^^u°^ *^® enactmento con- and 7th Victoria maj le suïided " "^^^''' '^ *^« ^«^ ^ 8uspende^^^ provisions of that Act, viz • to^Kr^^ f carmng ont the burton Treatv ; and^e^m^ A Jf^ ^ complète effect the A«h- to the Canadian /ariiament Z dJtï^ff ^ J^ \*^°^ ^^««»*«d tïie United St^i^BlSthTv^^.ti '^^^"^^^ ^^^ own Acte. Now the 244h Vi^îLil »! ^ *® "«•** *® amencfite ■;\ ^ f.itt'l nm s • ;|î 35ai.^f î*.T'i'\ wî sec«to«i 'of 6th and'7tt)Vwt«i^' wbred to do, and the eflfect r ration of the 6th and.Tth énactments existed Jo'^e ;, and by this law, 24th Vîè|»ria, , .^ _^- - - -,. ,^ Council -were necessanri îllv^a» . ^ Ibe treaty, and the Order in Coupcil wa^t^ly tibé Ao^î 6th and 7th to déclare the suspensiéÉ of vÀ-ei -jl jA : ■ . ■ ' t^ '^, ■ ,,„ Order îtt Cotmcil had been made, the local Act wov nbt hâve- hadl^e lésa force. It waa the enacting clauses whiv, deolared the slspension of the Impérial Statute, so soon as a Oan iiT»n A/>f iBoa^naaa^A and froià the moment the '"*^^ iri.^.^v. no w^ was it neoessary tô make ojr complète a law. So far as re^EUrds the proclaiâation^ it was aoi necessàry to mlon \ -j!- :^' 159 . ', the 6ne declaring that the warrant of the Govemor General WW necessary, and the other affirming that it was not, and botjii safisptàoned by the same authority, viz. : the Queen in Council. It is^pÉpÔBsible tq suppose that if such had been the effect of pàssing î|lî%24th Victoria, so great an embarrassment would not havebeen avraded. ^^^!VThe Ordet in Council, insead of leaving the law of the 24th Vic- «||ria to its opération, would hâve advised her Majesty to hâve dis- '^àïl^wed the Act._ >< The Impenal anlh^rities considered, therefore, that the enact- menta of the 24th Victoria^ chap. 6, fully carried out the provisions .ijpf the 6th and 7th Victoria, by substitunng the enactments required to suspend the opération of the 6th and lû^ Victoria, iri thia coun- try, and so long as thèse enactmeAts existed, the 24th Victoria was the law of the Tand. The argument that the Act of the 12th Vic- toria was repealed by the Consolidated Statutes of Canada cannot affect the question, for fhe 24th Victoria was substituted for the 12th Victoria, with ail necessary enactments required by i^e Impérial Statute 6th and 7th Vicl^ria, to give effect to the law. The very terras of the Order in Council on |J^subject of the 24th Victoria, clearly indicated that the Impérial authorities con- sidered that the subject was exclusively within the jurisdiction of the Canadian Parliament ; for ^the words used in the Order in Council, viz :-7-That the 24th Victoria should be left to its opéra- 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 Cpun^ had hsen necessary, according to the argument of the Counsel for the prisoner, although not required by the act itself, such a pretensioa must clearly rest on the asser- tion tiiat a mère Order in Council and a proclamation hâve greater power and force than an act of Parliament. The 24th Victoria having receiyed thé royal assent, it still had notUie force of law, until Her Majesty in Council had approved of it, and ratified it. An assent hadLjj^eady been given by the Qa^en as the third^a^|^|^i^r ^p^' Fj&riiament of Canada, but ^that assent mnat Ppgam affirmed l^y^ ^H^rder in Council before mo Act couldJtiecome law. If so,ilihère"i8 not a.smgté act m the Stàiute Book^icbhas ther^o|Ce of law. ^a . The proposiocn therefore is thatof P&rliapeiilcomposed'Of th||; tfatree great powero of the ^te^he only powers whioh eMA Éàke a, Iaii|^ hâve assented to the law— «till the ï^riyy Coun«|l, which has no le^s^tive functions whatever. mustr.ai^rove anaratify it w^*v^^ w»^ .fB^w liwii t^mivinu w ^p>w^ y 1 — ™~ lUfl argument in my opinion is untenable ; lèei 12th VJptt^ required an Order inri||guncil preoisely because the 6th and 7th «. «■A %:-,'■ ■^^î.^ kj' 1 » Il il 'i % \ \r tîs. » tÉt'" ^ 160 Victoria required it, not for the purpose of ^viog effeot to the Aot of 12th Viotofia, but solely to suspend the opérations of the Impé- rial Act. As soon as an tact was passed in this oountnr to canry out the treaty in^anada, the law had been fulfilled, and the jvîris- diction transfei'red from the Impérial Pàrliament to Ûlq Caaadian Parliament. 1 If not for this object, what was the Canadian le^slation to efiect? If then thèse acts had not required an Order in Cogncil to be given, such order would not hâve been necessary. \ T^e Act 12th Victoria anji |h^ Impérial Act 6th and 7th Vict<»ia, bodi stated that as soon asi Éer Majesty, bj an Order in Counoil, suspended the 6th and 7th ^ptpria, then the Canadian hw should corne into force. This ordejr ura^ given, and the Impérial Act was consequently suspended. 1 > Thus, then, by the paasin ; of the 24th Victoria, àîl the powers of the govemment were broi ight into harmonious action. iThe Le^l^ture, the Jud cial and the Executive, ail ooncurred in giving ML effiact to tlie-tr^aty. The powers oonfbrred by this concurrent action upon the Judges and Magjbtrates of the country, in gênerai terms, were as a mère matter of local jurisdiction 4nally regulated by the amending Aet. For the 12th Victoria, cha^. 19, in ^ring this jurisdiofle d e au p ou» o f fugtiie^<>3BmâMag^-^r^egtioEr«»Te for f od Thei 6th and and Ûu Order/i by it/v thiyjPr< ït Wî me Imj «lominio /as the ( /rying ii accordi that pai it'Yemai the sub Whe the sub ïf it it, and the ma * Iftii it is noi The pended ment si ihe As] Thé the cas< « Ist. Victorii for anol That 6thand necMsa That became ihe cou That law, an 'limperii mt 24th^ feo Hind (m Hahea» Corpus^ pa^e 5ÎS1, and following pages, y^re the subject has been to a oertûn estent discussed. prOTlSK âà^. X. # ,►< / 161 The mfl(ment then, that the Order in Council required by the 6th and/Tth Victoria, and 12th Victbria, chap. 19 had been passed> &nd the proclamation made in tlùs country to thi^t- effect, thè Ordemn Council had fulfilled the object intended to be atfaûned by i^viz., the suspension of the Impérial Act within the limita of tnis/Province, and was no longer necessary. ^ ' ' yfOB intended in the 'first instance merely to déclare that as Impérial Act alone could le^late on the subject for ail the lominions of Her Majesty,'the Act had been passed ; but so soon /as the Canadian. Parliament had legislated for the purpose of car- / ryiug into effêct that làw, within the jurisdîbtion of that Parliament, according to its own laws and institutions', that the Impérial Act in that particular would be accordingly suspended. Once suspended it*>emained suspended, so long as Canadian législation existed on the subject. Whether the Canadian Parliament could eriginate législation on the subject, is beside the question. If it had authority in the first instance, it was delegated to it, and delegated by uié only authority which had any coii|rorover the roatter. ' * If the Impérial authorities were satisfied with the matter, surely it is not for the pepple of this country to complain. The Impérial Act, therefore, once suspended, it remained sus- pended, so long as there remained on the Statuté Book any enact- ment substituted for the Impérial one, oarrying into complète effect the Ashburton Treaty. Thè conclusions, therefore, which I deduce from this branch of the case after the passing of the 24th Victoria, are — « Ist. That the 24 th Victoria was an amendmg Act to the 12th Victoria, chap. 19, and simply substituted one mode of procédure foranotber. That Buch power was expi«88ly given by the fifth secticm of the 6tii and 7th Victoria, chap. 76. That the power given to regulate necessarily implies th^right to ainend. TheA such amencment havmg received the Bo^al assent, it < became law, and'was absolutely oinding on ail ihe inhabitants of ihe country. That ^pNis more «fl^^chtally to oarry eut the provisions of tiie law, and me treaty, ad^M^ared in tiie Impérial Act. IhAt it hàd not ihtmmtM reidving tJie 6£h and 7th Victoria, Nbnperial Statute. ^W * TÊkt the only lainr ifi force in tiie Provinbe on tiie subject, is the 24% yîctoriaj oonsefl^nentl y tiiat my WMWjat iasued pnder tha_ prôviaidos cdT ÛaA Ïa]ki8 le^ to aïl ÎE^nti ieA porposes. X :'t> ; \ T .1 t -jnnv 1;.^ -, ♦ ♦ • / :♦ I néed not, théière, extend the argument an j further. I bave «onfined it tothe examinajt^on of the gênerai proposition^ that i^e Impérial Statute, 6(b and 7th Victoria, wa a m j^r ce, and that I -was, therefore, without jyimsdiction in,j|n|É^ I will nçt touch on the^smaller poinw1^S8^1;ending in lEËImaellres only to support the gênerai objection. I bs^ve coûfined the argu- ment to ft s|)[ictl7 légal view of the objection, witbout, I trù^t, bemg unnecçâiil^ diffuse. ^ been mode, in the course of the arguments, tc^the fact that .dilRî^nt opinions havè been entertained on tbis subject. Wht^nay be the opinion of others on this point, it is neither my blJBaiess nor my duty to enquire. I aîn not É»e to criticise the op^iions of others, but to state my own. Tbis opldon bas been formed, irrespective of the opinions of ail others, and I may say I haf e- never entertiluned a doubt on the subject. . \ In doing this I bavestated the proposions of law, which I cmj,- sider aa necessarily flowing fîrom the argument, and after a carefulj^|L examination of the matter, I bave come to the conclusion that my^^ warrant was prop^ly issued, and the objection taken by the Counsel for iÉ^prisoners il^ tberefore, overruled. Jlfr. Kerr desired'Ioebring under his Honor's notice another ob- jection; viz., that the prpsecution had nok^ imder the 24th Vie, ohap. H, made put any case ajgainst |^e accused. !Qft said that the 12th Vie, chap. 19 gave to pudsp ^ magistrates o^ this OQuntiy cognizance of crimes committea*' wi<||n the juriÉiot^on of me United States, or of v^ of mdi States";, but in ^e 24th Vie, cap. 6, the words, " ortBkny iôi»uch Statei," do not appear. It y becomes, then^ neoessa^nbo enquire whether the iHÀ committed^ by the accused at Si; JUbans, Yermont, oonstituted a cripie com- mitted within the jurisdkiâliof the Uni^ States c^^merica. The]#iras with regard tQ%«^u. States, a £iPi^ jtu^sdiWon ancTa State jurisdiotion. ïhei former, or U. .Si'juris^tiîÉ; ;(ra8 baseéÉÂï certain grants of sovereign rightaiand privilagd^i^ê over by the^^ ]>èoi>||é of the se vend Sta-tei oompoml^ tJ^ïoimer Union. N^ ^ k •odiél' righta and privilèges attaohîi^» tWOovàrnment of the ^ United Stiatip; and ail o^ér right^flB{irflieges of sovereignty «ot eil^reas^ made over 1^ the (>)n8Îilation to the Fédéral gqvem- it, atrached and tenuûned to each olHàe several States. Jn sup- of tlûs he would refer to " Story on the Constitution," p. 412. e Govemmenfc of thei United States could not, then, clama any fbwer not granted to it bythe Constitution, and the povers aoioally granted must be such àa wese given expressly or by implication. We had, Aen, to cm(|ttire whefcer the j uriadiotion of jh e TJiiited States extended d?er cnmea committed within the body of one of tiie several <^^£^tes qf the Union. He oited the opinion ofChief Justice Marshall, % f f'âfe'. ■* ..iSe^;,!., the crime ita own L m . /,.: tfie Constitution ând C oflhé U 8 tJl'iT'f ^'"''^*- ^«^^^ nanower to leirislate folsf^w ?-'*^e *^ederal Goverftment had HiaHônor's warrant stat*.«i th^Ttu I®™?^*- au© conclusion of beenlommifted ait the wi» h? '^^•i""^ ^*^« 1^^% ^ ^hich had jumdicISrovr it^ Th« ^!!i '* -"• ®**'«' *^^*»t ' RobberV^Jn a State or lîl^l »*l Tl»? conséquences *ere thèse ; " the U. S^oCmenSa Sl«r^^^^ of of had alone 1 ^^1*21 V^^^^^ the Government there, ,Tight in tWs insS tSww, ^!"^^' ^"^ «*»«««d that. to thjs particnJar charffA »*«. *k • Vv™" ' And, ip respect junsdiction over thi« »m>^ii^ ^^-e V\ 1 î"^_^ûited States any if Vennpntt ^ ft^^S^L^^Sl^^l^^ it exclusiT*, or was ik concurrent ii^ th^t Ir thf ^^^'1"^' *" / tendôd'on the othe^ aide ttat il K«ï kîL Albana ? ît waa côn, comi&itted in the^Sâie of ît^A^ frôea pwyed thut thia oifeace, îwx to prove this faeti . BuénE/? ? J*"»^°' ï»w^er lato »hô formation BadX atfemiï w? ' ? *t' ^«««'; ««>» » ^ ia* lawyerXhad-W^Sf. A*'L-,.^«*^^ ^e tion ^the State of v!S^ 1 wclteiFely i»ithm €e jàrîadîo^ the crime of robbery committerin^SAfr ^ J*»"^»»*»» ovér •■/ > ■^'). ', yI \ 1 1 (. , ,i't-' If'i .■ ' m ■ 1 ni 1 \ •-* ^ " ■ ^' ■ , ■ ' «' 164 ■' diotioofi in tbd United Stailiçs, ma ihe off«nce charged hère was one within the exclusive jurisdiction of the State of Yermont. The &iki&ers of our law appeared to be well aware of ihia fact, as they had made provisions éxpresBlj for those two jurisdictions. The statute 12t^ Viotona, cap. 19, was evidenljy drawn up mût: & careful wéw of this distinction as to the two jonsdiotions, and in, this respect, har- monized exaotly with the pro visions of the Constitution of the Ui^ted States. But the â4th Yiët-, cap. 6, hastilj prépared to Ikçiltti^te , the extradition of fugitive slaves, had diaregardod the distinotion, and provided onlv for the extradition of persoss who had committed certain crimes witlûn the jorisdiction of tiie United States, omittine to miake similar provisions with rmpeot to '* any of such Btates";'ana t^e omisffion of anj provision with regard ^ " any of such States*^* had been oarefullj made wherevejlr one had oooanred in tiie former statute. This must surely niean èomething, and only oiie oonstriic- ti JV.-.. -syr '// 165 :it 'i: «ontracting with regard thereto could not moan by tho word the actual domestic jurisdiotion èxercàsed by a Court of Quartor Sea- sioDs, by the Court of a State, or by the Suprême Court of anV State or the United State». The treaty did not mention the woniu " one of the said State»," but taerely " the United States." The words were not that theirime ahould hâve begn oommitted agunst the juriadiction ofthô United States, but " in the jurisdictïoa of ^P United States." What Mrai-ajle^ed in the warrant wiw, not i^at tbe> offenoe was oornnûtted" a^tmst the juriadiction ôf j^ United "fitate'a, but agaJn8t„the peace of the State of Vençont,, ône of the Jlnited Statqa of America, and within the juriadiction of tie aaid United States. ^This waa ûXJ^ht ma necessarv. , If f he jm^ « soners' counael held tjie correct vrew, the treaty wouidrbe a nûlhty. Thvn could b© no extradition .for any o9i)ncé comrnitted a^iùnst, the laWs.of tiie Ùnitëd Statea? properly àô oalled except m the amall District of Columbia. He believei^hat the treaty and sta-. tûtes paased tô give it çfect must be construed in the moat liberiU And not thtf oibat narrbw n^anner^ and tèat the United States Qot- emmeat ialf power to extradite as regards erery State io the». Umop. "^ . , Mr. BeoUn foUowed on the aame w4e. • -tl' ' Mr. Éethune contended that the Court could net put ûpon Ae •words ** within Jhe juriadiction of the United Sfiitea " the strîèt Interprétation g^rea them by tiië Cîounsel for J&ie defence, imid cited au^oriUes to show that in înterproting statutes the real. intention ,woul4 always preYwl over the Utoral intention or,^ ex- pression. Kie preamble ofthe A-ct must be cdnsideredaa-^ part, and explanatory thei-eof ; and the 24th Victoria judged by this principle, wid receiving its proper btoad and libéral interprète-, 4âon, wouW sanction the view of the prosecu^on, ttiat ^e United States had powef as regards every State of thè Union m the mat ter of extradition. Was it *o be sapposed that while ôrist Britûn treated re8{>eoting the extradition of oriminalsfrom ail parts of her hroad empire* the United States was to be understood as agreemg to extradite witb référence toonly Bl fe|f|j^^ seôtions suoh as the district of Côlttmbia? The words oWé*lBaty bearing upon the «nbject werg-^* offences committed wtoijlhe jiuritdiction of either toation-" Thç ùtatatçs used the same ^hi^ser The only qjw»* Jion was-^^M VenBOnt witinn tiie junsdiotion of the United Stàtés ? BVôry ifîtoées swore it was. We wewr bound to give 1iie7bi^o>^<><^ ineiînîng to . ■■ ■ », ■/, .w ' '*.. m h . *-; 166 .'^''- '^^*' was astonished to hear the argumente °of his leamed fnends. ^The State of Vermont had given over to the Fédéral Govemment certain righte, but it had not given the right of juris. diction. He maintained that where the court of a country could. not take jurisdiction of an offence, that offence was not committed within the jurisdiction of the country itself. The Government had brought a gfeat deal of influence to bear on thia case; but of course every body was aware that a peace-offering mttst be made to the Fedei^aJ Executive. A number of people were of opinion that the pnsoners, though proved belligerente, should be given up in order that our fears might be silenced, and the bugbearof mture danger averted. Everythmg had been donc to throw difficulties m the way t)f^he defence, stiU it was to be hoped that this Court would render to the prisoners that justice wfflch was their due. It was to bè hopgd that his Honor sitting there would do justice to thèse men regardless of ccbsequences. Mr. Laflamme argued that there waa nothing to justify the ren- dition of the pnsonera pn this charge, The United States had a certain junsdiction belonging to the Fédéral Government; the State of Vermont had a separate and independent jurisdiction of its own, and this charge was one of those which were cognizable only by the jurisdiction of that, State. In fact and in law the cl^m now put forward bythe prosecutjon was utterly untenable ; and the Ccwirt, he thought, could corne to no other bonclusion. Our au^o- nties had gone out of their way to mt^ere in this case. We had seen members of the Government postingt^off to Washington to appease the avithorities there, jpst as if there weA no law in Canada to meet cases of this description. We hâve sli/ members of tte Govemipent go to Washington to promise that we would be good boy8.in.'fu^ure, lest General Dix should corne over to Canada and rescuc^the - prisoners from our justice, so that they might be given up to their justice. But namatter how the Government of this country ihad interfel-ed in this case, he (Mr. Laflamme) was certain that this Court would deal by thèse young men as the pnncij)les ôf British dbnstitutioftal law directed. Judge Smith— l will talie the case into considération, ànd cive my decision-on TÇuesday. * * T The Court then adjouimed. ' ' \ i . w ,■ — r • .- - ^ ' , „. * * TUBSDAY, J^. lOth, l$i6. • His Honor Judge Smith gave decllion on the point raisjdto;,. the counsel for the defence on Satufday, as follows:— . «-^v^ This ob ject i o n re a ts o n t h e ground th a t th a nflfrnc e char;rt '"**'''*' covered by the Ashburton Treaty, that it is an offence agi State of .Vennont ; and as the State jurisdiction of V* ■ Ç' , \ ^ *> States of offet alone. That States, by posii this dis or of M either i States, -last woi intentiq içffencea States. in supp< «risqnei Vermou the Tçr St^lté his/di^cl IhaV The saî the Sup Thisj which C( \it existe objéct consequ -jin the I jurisdict . of Justij ^ jurisdict sensé, ii and is jurisdict . jurisdict ovintoiK is àe«es< -exeroise or to su| th^^ehtt *'. ive V*" ■\ 167 separate from, and independent of the jurisdiction of* the United ' States it is not covered by the 24th Victoria, chap. 6, which speaks of offencèa committéd withjui the jurisdiction of tiie United States' alone. ^ - That thé jurisdiction of the United ^tes, and that of severaf States, are separate and independent of èaôh other, and i:egulated b^ positive law. That the 12th Victoria, chap. 19, acknowledged this distinction by apeàking of the jurisdiction of the United States, or of an^of 8ucn Status, therehj covering iU offences committéd „ either withio the jurisdiction of the United S^tes, or of any such . Siateif and that tliô 24th Victoria, chap. 6,' having omitted thèse ». -last words, viz. : " or of any such States," that it nécessarily and intentiqnally restricted the opération of the Ashburton Treaty to tçflfences committéd solely within the jurisdiction of the United States. Tiiat it hsjs been proved in this case by the évidence taken in support of thig application, that the offef ce "charged çigainet the «risqnenp was" comniJtted within the jurisdiction of the State of Vermont and agaîast fhe laws of that State alone, although within the.|çrrit<»ryH)f the United States, that it does not fall within the Stjftuté 2'lth Victoria, and consequenUy thé prisoner is entitied to hi8j4ipcl||r|^ë. J,? v," I haVi thu^i steited tl^ objection in its broadest possible form, that itWv be covered by thé argument rtrade by the Counsel for the prftwnJÉife ■ >^ ■* ïbOl|^.rton Treaty 'Was paased for purely national purposes. The suifWfei' of pertiona for jmputed crimes can only be done by the SupremOîxecutive authority of independent nations. * This power in Greïkt Britâin existed in the Impérial Pariiament, which cottld alone legisïate for the Empire. In the UMted States \it existed in tiie Suprême Fedet*! Législature of the liSwn. The objéct of4l»e treaty could onlv be^ttained by the natfbnal power, coBsequently it, did noV^-esidç in any of the United States, but j in the Fédéral législative p<» : . So far, therefore, as the Impérial Act ia ooiicemed^there càn be no possible difficulty on this point. But the Canadien Parliament m legislating on tiié subject under the power confcrred on that body by the Act of 6th and 7th Vic- ' toria, introduced into thô firflt clause of 12th Victoria, the worda which hâve given risè to the âifficulty. , • * That Statute said throughout the Act, thaC sufrendèr should be made by reason of offencie committed within the jurisdiction of the "Tlmted Sta*es, orof any of the said fitete», thereby^eparting from the words of the 6th and 7th , Victoria aniî of the treaty itaelf. And so throughout the said Act 12^ Victoria, the«aiffi^ Wàrds are uBed. Thèse words, so \innéce8sar|r. to express thé objects'of th» treaty itself and the 6th and 7th Victoria, hâve given rise to the idea, that it was the intention of the Législature to make the word i: uf isdicti o u, used iu .t he treaty, a ndiirtfao <^ anitTttf « onderstood to be used in m liraitcd and subordinate sensé,: and thereby t(^c^eate the sape diatmctîon in this Act, ip explaining T ' •• i . .' 'a'- "*"' ''.*"" '~ i , * ' ' f. ■ ■ ' $ .::l. 169 treaty obligations which exista when the word is used in its limitod and subordinate'sénse, to express the distinction between Fédéral and State jurisdictions, or in Courts of Justice. This was clearly a mistake of the Le^latuïe, and beyond its authority to do. For such distinction, if it could exist at ail, would hâve changed the contract between the two Govemments, and wç\ild hâve nullified the treaty itself-^a povrer which the Parlia- mênt did not pbssess. But it is clear to me, from the whole act, that tW additional words were used not in suoh a ôense, but from extrême caution, and a désire more fuUy to explain that th» word juià$diction used in the treaty, was to extend over the several States in the same sensé in whi6|iit. was used when applied to the' United States, although this was altogether unnecessary, and was calculated rather to confuse and to croate .doubts, than to remove them, The 24th Victoria, therefore, removed thèse words so impro- perly used in the t2th Victoria, chap. 6, thereby restoring the word " juriadiction " to its true and original meaning, as given to it by the treaty^ and by the 6th and 7th Victoria. ïhe third sec- tion of the 12th Victoria clearly show how improperly thèse worda were used. j,* For b^ that section, power is there given to any Govembr of any particular State to a>pply for the rendition of any person charged with crime, with plower on his side to surrender to this country any person ôo charged, and found'within the ItoitB of his j particular State. > "^-^ ,. Such a powej^does not exist. It is néither to be found**!!! the ' treaty nor in the Impérial Act, and it is not to be founâ in anyr i Act of the Congtess of the United States. ' ^ Thti^ Chief Justice Marshall, in answer to «'question put in the argument on thepoint, (see his work on the Fêlerai Constitution, page 142-3) : What is the Jurisdiction which a State professes ? " We answer without hésitation, the jurisdiction of a State is co- extensive with its territory, co-extensive with ils legislatiYe power." r^is is uncjoubtedly true. The argument, when applied to tike ^* IMted» States, is clear. Thus the jurisdiction ôf the Foderal Oovernmei^ Which is jsupreme, is as extenéive as its législative power. This le^lativè power extends over the whole United States in referepc© to mattera «xdusively w^thin its fiinôtions, web iM the treaty making power. Therefore Congress, being the 1^|^ ..^ lativç powef , ha& exclusive jurisdiction over the territory of th^ ^ United States in thk respieot, and, therâfore jurisdiction and terri-t '• power. Npw, the départe States, in -^ r4ip«f?t, hâve Qolej^al»- ^ tàfç power whfttevef, tuid, oouflequenUy, tiMy can hâve na jumoKo- 1 ■I ,' - -' ' .,f I f il' iî? f. ■\'L 'IV . •^vt."*,*' \H. < ft»;'H •"/ T jn ï^*^ I >i 4.1^ ■> r -t I.* V^7 i' <^ ttehold " tliç rtlm and "dévastation w F«deiral troopp, cit^ âny olie Wonder H -<» marks thfl' trâck of the^* khe fireâ pf reVeuge anî \- 170 tion in the matter, and, if they hâve no jurisdiction over the 8u6- ject, itis incontrovertiWe that in the sensé andmeaning of the Act there can be no State jurisdiction whichcan corne in contact with the Federaijunsdiction expressed in the. Statute, and, conse- quently, in the treaty, and in the law, the word jurisdiction must mean temtonal jurisdiction. ïhus • it is dear that the words « or of any such State " go used in the 12th Victoria, chap. ]9th were oTr^^'^ introduced, and they were properly rejected by the J4th Victoria, chap. 6, and the law now stands as^ if they had never been introduced at ail. The offence charged against the prisonei: is an offence committed within the jurisdiction of the United Stales, and falla çlearly within the provisions of the treaty and the Act. The warrant charging the prisoner with having conpiitted a crime against the laws of the State of Vermont, within the juris- diction of the United ^tatesj is properly stated, and is necessarily within my jurisdiction. The jurisdiction over the ofience, that is the cnme, is the State jurisdiction of Vermont, but the jurisdiction ?rQ mt"^J®°* °^ ^^'^ ^''^^^y '^ ^° *^® Fédéral IçgislatuÉ^M the U. S. The offence must be designated as against the «tate of Vermont, and so it is in the warrant. The objection is, therefore overruled. Mr. Devlm said that theprosecution had finished their case,'but that if the defence adduced évidence he would be prepared to oppose it. r r~ The voluntary examjnation of the, prisoners wag then proceeded Lu B. H. Young's statement:^! atn a citizen of the Confede- rate btates of America, and a soWièr in their service ; I hold and herewith produce .my commissionla first Keutenant in the army of the Confederate States, and the instructions received atthe time that commission was conferred upon me, roserving the right to put in évidence the further instructions I hâve recejiveà, at such time and m such manner as my counse] may advise. (Mr. Young hère . put m his commission and instructions from the War Department at Richmond, a copy of which we bave ^Iready publishod amoni^ the proceedmgs before Mr. Justice Coursol.) My heart is as opposed aa most dthers to measures of rétaliation, but i hâve suffered so many haw/^iips and endured so.inatiy privations in the cause of liberty and freèdom, thàt my héârt is steeled against sympathy for the " mvadere wi tippr^essors of;my belov« partiaUty, which bas imÂe it the joy of the fu^tive for âges past. l ■ 1 have^but done my dul^as a Confederàte solder, and am willing to àbidé the fate conséquent thereupon. Ail the men with^meat^^ St. Albans were éithef Confederàte officera^ Buldi«»jr«iKhl|J55r^^ mtay.a tard fought battle-field they hâve proven their devption to Sbuthèm righ^ and thè Southern cause., É&à àhouîd we bow be called upon to yield our lives in its defence, the partdng wçrds of J f lou. JiM. Ar Soddou;.SewetM f y rf^iy» for the Oonf c d g ri i tto Sfetea» ,^ =j wâl b» venfied. They wère thèse: " Lieuteiumtj you fo xifon fk' -, ,;^ fàni^rduEf iniwion, and you aiîd your commanèsht^l l^ ^iilly*)?!*^ H^ , / ':j. I . N ?N' '.K '*S' .<^ -A. '•-# m. >.£„v, t 172 tected." And I assure the good people of St. Albans that the day upon which I die will be one that will bring a wail to the best '|MBaies in the Green Mountain State. Mj death shall be avenged, ând th^t in the blood of Vermont officers. And again I assert that ^have â heart for every fate ; and if the English law fails to •^p^teot me, my govemment can and will avenge my sacrifip© at the ^^hrineof a cause to which thousands nobler than^I hâte yieldecT ^ leir life's blood. I am not, however, fully prepared for the full Science of myself and of my command, without communication witl^ iny Govemnjent at Richmond, which I am now well assured I carf* ■ «ffeot within thirty day s from this time. Marcm Spurr's statemmt : — I am a native of Kentuc^y, and an enUated soldier of the O.S. army, and my termof service Kas not yet expîred. I owe no allègiance to the so-called United Sfates, but to the Confederate States of Ainerica ; I ^as held as a prisoner of war in a ï'ederal prison from which I escaped ; afterwards I was engaged with other soldiers of the afore-mentioned army in doing duiy within the, Fédéral Unes, last summer at Chicago, 111. J placed myself under thecommand of Lieut. Young for the purpose of assist- ing in carrying out instructions from the Confederate Secretary of War ; I wa& in the States when the raid upon St. Albans was con- , cocted ; what I B&y hâve done at St. Albans I did as a soldier of the Confederate army, discharging what I conscientiously believe the dùty I owed to my God and my country, and my fallen Comradçs, md. in obédience to the orders of Lieut. Young of the said army ; in. doing this I violated no law of Canada or Great Brit^n. W. ff. Hutchinson^s statement : — I am a native of the State of ' Oieoirgia, and owe no allègiance to what was at one time the United States ; I am. not guilty of any of thq charges brought against me hère. In April, 1861,1 joined the Southern army, and hâve been con- nected with it up to the présent time ; I hâve violated no laws of Oauda or Great Britain. For the fibt four yeara of this présent unhappy war, the Southern people Were only doing their duty in repelling an insolent foe, and protecting themselves against outrage, injury and insuit ; the/ fought against heavy odds*a» the muscidar resources of the combined world wete arrayed against them, and they hâve overcome great difficultés with the cheerfulness and ppirit of a brave people. Our frienda, neighbors and relatives hâve been plundered, and ia many instances murdered; and itia the boqMep duty of every Southern màn tO protect and avenge them in aa inmvidual or national capacity. Ho civilized people cquld do mor e, "M L^o true patriot, of ^atever clime, could do lees. — »9HP. 2few«' mitemmt :^--^t^mTï mw^or Kmtuisky, a^sbldieF^ in. the Confederate States ar^gj. I owe py allègiance to the Con- ■ ^ f •* ■=■*! 173 t. n fedei^te Xîovemment, and not to the Yankee Govemment ; What I did at St. Albans was In the capacitj of a Confederate soldier, in obédience to the orders of Lieut. Young, a Corfederate oflScer. I violated no laws of Great Britain or Canada. " ' Charles Moore Swag^s Btatement: — I am a native of Kentucky and a Confederate soldier, owing no alle^ance io any govemment. but the Confederate Stiites çf America ; I %as captured a prisoner ■of warby the Yankee forces last May, and efiFected my escape from my ' enemies at Chicago, while on my way to prison. I joined Lieutenant Young's command at Chicago, last Âugust, and participated in the ' St. Albans raid. I feel it my duty as a soldier, tp hsurass and an- noy the army and navy of the United States, crippîe and destroy its shipping and commerce, captuoe and bum its îowns and cities, and otherwise damage, if possible, a Govemment which seeks our destruction ; my object béing to remove, in a manner, tjie seat of war to the heartof the New England States, and make their people\^ feel Bome of the horrors of war, in retaliation for the ci;imes and\ outrages inâicted on the weak and defenceless women and children of the South ; any acts I might hâve committed at St. Albans was in the capacity of a Confederate soldier, acting under orders of Lieut. Young, a cpmmissioned officer of the Confederate army-, I look to mv Govemment for the reward which a soldier wfio has performea a hazardous and dangerous duty bas a right to expect, knowing full well tjjat the people of my beloved South will justify and applaud my obnduct. I hâve violated no laws of Great Britain or Canada. / Mr. Abbott men presented the following pétition, askbg for thirty days délai. PROVINCE OF CANADA, 5^^,^ H. Young and Marcus iMrietof MofUrtal, \ Spurr.twooftheprisonerswhose Lower Canada, to wit: ) extradition is demanded, de- poeùng on behalf of themsélves and of their fellow prisoners in this matter being severally doly swora, do dispose and say : That déponents and the other prisoners chtu'ged with the ofience now imdér investi- gation, require certain testimony which is necessaty and material to ikeir defence^and which they are unable to procore in Montréal, or eren in Caïuula. That such évidence wul establish amongst other thingB that eveiy one of the prisoners now m custody is an officer or soldier of the army of the Confederate States of America, s~ 4**^ entifltw3^ .} tt; i W .1 ierm of service has not expired ; That this déponent, Bennett H. Young is, and was <»i the luoeteentli day of October last, an <^oer ^ ,. --■■ M' ta ■ Il 174 m m .> of the amy of the Confederate States of America, holding the com- miaion and rank of firat lieutenant in tàat army ; and that the other - of thèse déponents and the remainder of the prisonera were dulj en- gaged and placed undér bis commaad for spécial service under the / authoritv to hTn^ given by the Govenunent of the said Confederate States, Uirough the Secretaryfor th« War Department thereof ; That every act and thing wbicb they or any of them did ài ,the nineteenth of Ootober lastat St. Albans, in lie State of Vermènt, waa so donc under and in pursuance of the orders of the saiji Lieutenant Young given by him by virtue of his insianictions from the said Government and of his authority in the m^mises ; That ail and every of the said acts were duly authorisec and directed by the military autho- nties of the said Coirfederate States acting ^nder the Government thereof, and \«eriB acts of warfare committed and performed in côn- formity with the rules and précédents by which civiliked warfare is conducted ; and that they were more than justified by the acts of gênerais and armies in the service ahd under tlie ^rders of the Fédéral Govemmenfcof the United States, and as rèt^ation fpj fiuch acts ; That the said acts of thèse déponents andtof^he other prîsoners hâve been approved of by th« fùdd Govem said Copfederate States, as being done in confonnity \ tions 80 received fiom the said Government, and bave nized and adopted by the said Government in autheni cording to constitutional law and, usage ; That on a formLr occasion when l^fore a Judge on an application for ej^traditiori, thèse de* ponents'and the other prisoners used every meantf m ^ei power to open a communication with Richmond for the purpose o^procuring such évidence, and amongst stepp tending to th&f efld, Applied by pétition to his Excellency the Govemor-General of Canada, prayihg for such assistance as might lawfully be afforded them in the attompt to obtam évidence therefrom ^ and aiso made a siinilar application to the Président of the Unitôd States,, which appUcations were rejected ; thi^t Ijiey also caused spécial messengers to be sent to Richmond, sdme of whom had been arrested by Sie Fédéral autho^ nties previousto the discharge of the déponents and others who had not then.been heard from. Bu* that so soon as they were discharged by Judge Coursol, their efforts to communicate with Richmond ceased, and the news of such dischai^doubtleôs caused the autho- nties there tô desist from any attempt to transmit to déponents the documei»t8 applied for. Thatîmmediately after the re-arrest of déponents a messenger left Halifax charged vrtth procurinç from the Govemment of the Con- r x?^^^ ^^^^Ji^^ ^ W'^'^.i''^^'^"?^! ^^^ T^^* although déponents cxp«Gt«a-aaa b<^-, ' \./,y:.. \ \ t 175 .■ ; ■•-•„. condition to be able to défend themselves, the nature of which they cannot disclose without imperilling their success. That déponents hâve since receîved information and assurances upon which they believ« they can rely, that the évidence they require and hâve already taken measures to obtain^ can and will be forthconiing within a month from this date. That if they are not accorded the said delay to enable theiii to procure the évidence aecessary for their defence, such évidence as they will be enàbled to offer will be necessarilv less perfect than if a just and humane indulgence were accorded to them ; and that if by reason of the want of requisite time to obtain such évidence, their defence should be imperfectly established, and theyshould thereupoh be delivered to the emissaries of the Fédéral wovernment, such a proçeeding will be handing them over to ceHain dèath at the hands of the executioner, on the pretence that «hey committed crimes which they never either committed or conteihplated, and which they look upon with abhorrence ; but, m reaflit^, because they are the enemies of the Northern Govemmwit, e^ga^ged m warfare against them, and because that Goveyûment desires tOh wreak vengeance iiçon them, -which is neither justifiable by the là%8 of war nor of any civilized «ountry. A,n(fdpponents ftirther say that they do not apply fe^the said delay ffom any^deBire unduly Jo suspend or delay the ^||éeding8 for theîr extradition, but for the soIq and only reason^l^t they «améstly désire to place the \?holj» truth fuUy and ftiirly before his Honor "the Judge, before ^IjjwSi the applièation for their extra- dition is pending, and that they cannot pro|)03e with confidence to. do 80 within a less pepod of time tlian that which they hav^ men- tioned. And déponents have se verally fligned. ' ' Swom before me at Montteal,^ BENNETT H.„YpUNG, this tenth day of January, I MARCUS SPURB.' eighteen hundr^lkind sixty- f i five., J - * ""■" * %' J. Smith. , :*, Hf € ■—f- Mr. Devlin — Objected to the application, contending that it was prématuré; tiiat the first question to be solved and âçter^ mmed was, shall witnesses be examined in behdf of the prisonerft ? If the Court should raie \s^ l^e aflBrmaijiV/4) tfa&t w " ' ^ - ^ such an applicatioi]^ aa Uie jn^ent. /This ap for an assent to t? ""' "Be invoïveiT in the granting a defay for the brin witnesses. We ask the coiinsel opposite to go and whether they intend to examine witn^ases. time for as a trai h «11 ' i ^•i f .' ' .11 \y. !_ V;4 s^^ !;t 'm <■'■ iiP 176 ' Mr. Abbott. — Of course we intend to examine witnesses. Mr. Devlin. — The first question I would wish to bring up iç'rf question of law, and in order to do so, I (îiJl on my learned friënds to proceed with the examination of their witnesses, if they hâve any, or to cite some authoritj, or présent some argument to justify the Court in rec^/ing évidence for the defence. Judge Smith/— ïi is clear what the nature of the objection is ; but I cannot give any opinion upon it\iU I hear counsel on both sides. Mr. î>iBvlin' B&id the indulgence asked would amount to a déniai of justice, thè accused having alreadjbeengrantedthirty daysfor the obtainment of witnesses from Ridimond. If the prisoners had av^ed themselves of this indulgence, their witntjsses might hâve been hère to-dav. They were arrested où the 19th October last, since when, with the exception of a short time, they had been m custody, having had sufficient opportunity to bring forward their testimony in defence. Th# object of Ûie application was, evi- dently to defeat,^^delay, the prosecution. Then the affidavit ' ling a single fact which can be or codd khe witnesses whom they pretended they , in spite of the rule requiring that when lefor/'âelay to obtain testimony, the ap- X, ^- facts he desired to prove thereby. ^V^as his Honor prepared to départ so far from a practice hitherto prévalent, and sanction an application of a party who had the assu- rance to demand this favor, and, at the same time, studiously cwiceal from the Court the facts intended to be established ? The affidavit or application itself was defective, and s^ems to bave been written with but one object, and that to abuse an^ In- Bulk, as far as they could, the United States, the parties who were simply asking juâ^tice at our han(^. As to the statements that the accused, if extradited, would be sacrificed by the United-States authorities, we were bound to believe that, if surrendered to them to-morrow, the raiders would receive impartitd justice and a fair trial. He (Mr. D.) protested against the introduction into the affidavit of statements as to the exécution of vengeance upon the raiders in the event of their renditdon to the authorities. Such statements were an infringement upon the honor of the Court. If the prisoners were commissioned by the authorities at Rich- mond, àe li^tter should hâve taken the précaution to fumish them with the évidence of it, and of the belligerency of tjieir aots. Taking it for grantedthey were sent abroad to co;nmit morder and robbery in St. Àlbans, in a peaceful, defençeless place, they ^ould havct been fortified with aU the authority =^fr the 8rding to the English law, to producé^evi- ^ dence before a magistrate tending to characterize an act that he ad- mitted to bave donc. He would refer to a case recently tried in England — that of the Gerity . That case was tried before Chief Jus- tice Cockburn, and Justices Crompton, Blackbum and Shee ; and it was held that on an application for extradition the duty of the exami- ning magistrate was purely to enquire after the évidence of' a prima fade case, and nothing more. And it was forther held that the fact of belligerency must be a case for trial before a Jury, in the country against which the oSence was committed, and not for % th e Mapstrate of a fbreign nation before w hom the complai nt was ~\ — made. ThéTèaraed ciaraBet wScëédëff ^ read from an Englislr law magazine, the remarks made by the four Judges in the Gerity case, and to comment on the décision of their liiS^hips ; and pro- ,1 'In " ' 1*1' '■' il 'M fi* ■ ..' w ■ " n >■■■ !^P5?? ■■¥..- i ■/: ^Vi " . «w ■ t '","■'-/■-■■ ;r' ''^"i '■■'"■- ' '~\'o-- v'>-::i--^';>;'';/ "■ ";■" ■■■•■' :':'';■ ' /> ■ ' ■ .^." ,. -,"••■''' t .■■'■'■'■/'■'m '■ "■ '■ ' ' - ■ ,11 ' -■•■;'. . ;■■•■■.. .. i, ^ .:-■■:■'. 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' '*. \ « > * n t' -. \ ^ . ..»•:.• '. .'^J*.W... , v. '^'^■a^L^ £^nf»£u„^'-\ i'^.iiiii.fe V ■■'J: ',/,-■ :,^ ^-^.";': .. ' ","•■ ^ k w \ ,. H aâ> - ^^. IMAGE EVALUATION TEST TARGET (MT-S) ,-*e*-- -? 'V 1.0 2.8 3.: M |4£ S: 140 M M 2.0 11.25 m L4 il 1.6 1 1 ti Pholugraphic Sdenœs • Gerporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 '^ 'î 'M. u ifi^Al^ih \ . i . i"; w»S fecîa .< -. »v ;•" .^ltÈ;MSi)iit.ïàiàiè-Vi»*4^ % ■<'liP: ceeded to aay that the décision in the Gerity case laid down-that' the question of beUigerency^was one that could not corne before^ an examining Magistnite. Mr. Bethune.—ThiB waô simply a cMài-ge of robbeir. The parties dressed as citizens, entered a town where there was not an armed soldier, and, in broad daylieht, committed what was known as common rôbbery. The parties admitted that they were there and asserted that what they did was an act of war. But the Court had no right to investigate whether it was or was not an act of war ; to do so would be to go beyond the scope and meaning of the tteaty. The treaty simply contemplated a preUminary exami nation, and on & prima fade case being made out, then it was for ttie Judge to commit, and the matter was left between the two ^- Jîovemments. The case of the Gerity had been mentioned by ' - his leamed friend, Mr. John^n. A case in which a simflar opi- mon was held would be fôund to hâve been given by Attomey-Gie- neral Cushing, in pages 204 and 211 of the « Opinions of the Attomey's-General." A more récent case was that of Frank MuUer. From the law report of the proceedings against Muller m New York, the commissioners said that in order to détermine whether the man was guilty or not, he must be sent back to be tried m the place where the murder was cominitted. Then there was the case of the British brig « Richmond, " in which, in a case of murder, the same commissioner m New York pursued a similar Ime of conduct. We had a case in our own Coui-ts, where the same principle was maintamed ; it^iras that of the runaway blaok Andersen. He was tried in Upper Canada, and, as would be found m page 60, tenth volume Common Plea Reports, Chief Jus- tice Draper said : « If theré be a question of-fact to be tried I apprehend he (Andersen) must be surrendered, as that can only be tned in the country where it arose. " The leamed counsel concluded by expressmg a hope that the Court would not act con- *?f?^(^ *^®,P™^^P^®« ^^^ down by the English judges in the case The Court then adjoumed. Wednesday, Jan. 11, 1865. The Court opened at half-past ten, Mr. Levlm asked if the prosecution wer« to understand that his^ Honor, m deciding upon the application for thirty dayg' delay, would décidé upon the admissibihty of évidence. Judg« Smith^ASUiT Mr. Ajfebott bas finished his argument. I will be jn a better ppsif — "'*'*^ .. . o Mr. ASSoti.—J. am"p upon the instant. y % % your Honor, to argue the questioa ^ffir %' ' % ■ ■'■ „. ■ ■ ' 179 •' ; ■ ■ _ * Judge Smith. — The whole question, as to the admissibility of the évidence, Mr. Devlin, is intimately connected with the merits of the case, and I feel it would be prématuré îq, me, at this staçe of the proceedings, to pronounce an opinion, and do not think it would be in the interest of justice that I should do so. I stated yesterdav that no defence, properly so called, could be entered into at ail,. ' and that the prisoners, could not go upon their trial before me, for ' I hâve iio junsdiçtion in that respect. What I am botind to do is to see if tiie prisonérs hâve committed any crime which ialls within thescope of the Extradition Treaty, and that must dépend; upon the re» gesU» of thé alleged offence. Suppose $H*t a màn is charged with murder, and that a wittfess cornes up aiid says, " I saw ybu stiike a man down and kill him on the street. " But sup- pose the man accused tums round and says, " I must be permitted to tell the whole story, and shew that the party whom I struck down waa following me from" behind with a hajtchet to kill me, and that I shot hini in my. own defence. Now, sùpposing such a case, would the offence be murder ? Not at ail. A^jply, then, the same rea- soning to this case ; the prisonérs say that they were in St. Albans % that they ctHoamitted certaip acts there, but that they were justified in 80 domg, as they acted under the instructions of their govern- ment, a thing which they were bound by their allegiance to do. Now, Hihese men say — " we did thèse aots, but give us an oppor- timily of showing that we had ample auihority and justification for thèse acts. " Technically speaking, thèse ïnen cannot go on their defence before me. But if they show commissions and prove that ,,** they ar« belligerents, tlien, possibly, there must be an end of thCij*- ** mâttet.^ Mri Abbott. — The distinction which I am prepared to establish is this : — If it be really a case of conflicting évidence, the fact of the crime being committed being proved, that is no case for a Magistrate to try ; it is not within his jurisdiction to do so. Judge Smith. — Clearly not ; it is none of my business. M". Abbott. — But if, on the other hand, the prisonérs propose to shew that the aot comnûtted does not consiitate a cnme for which extradition could be demanded, that is a question which the Judge must investigate and décide. In doing tms he does not try the robbeiy, but £e appUc&tion of the treaty. ThQ prosecution should be content to Hxmt themaelves to the question of delay before the Court ; the magnitude of the questions involved, if your Honor is oçlled upon to décide now as to whether the évidence is mate- rial or not, ahodd indace Ûi<6 prosecution to confine themselves to ~tiie matter now before your HoiMtr. ~ ^^^ "^"^^ ■ ■"" ~^^ Judge Smith. — ^The question of the admisùbility of the évidence is a very dilferent thing firom the relevancy of the évidence. No ;.* \^ M yi 180 verbal testimôny can be reoeived in the way • of proof. If the wi- soner Young had prodaced doctonents at tiie time he was asked what he hadf to saj — if he had had them in his poasessron, I don't see how the-proseotttion could oppose their being put in. Some- thing bas been said about delay m this case; but smoe I hâve been conneoted with it I am not aware that there bas been very great dela^. I think the case bas been prooeeded witili tua rapidly as liossible^ I granted my warrant on the 13th of December ; the prisoners were arrested on the 20th ; tiiey vere brou^t before me on the 28rd, just as I wàs finishing tiie Court, and ^.could not then proeeed. The holidaya intervened, and the prisoners came up on the 27th. Now it is the llih of January, and seven days hâve been occupied en délibéré. In faot the case bas gone on with great celerity, when the amount of labor conneoted with it is taken into considération. As to thè présent application, my impression is that I sbould grant delay. I do not wish to be obuged in give my reasons for this opitilon at the présent time, ànd it is withm my discrétion to hold back any opinion at this moment on the faots. But is there any argument to be offered by the proseoution ? Mr. Bethune. — ^I don't \^ithdraw the opposition I made^ day in the slightest degree. I am satisfied, looking ba whole history of . this matter, that ail this is merely ' ^ There Is an application for a delay of thirty days, in or^er' to Richmond, and for what ? For the very instruction!^ the priso- ners said they received. Your Honor bas ruled that \;here can be no verbaJ proof, therefore the prisoners should produce the spécifie orders tiiey received from Richmond. Why «t^ tiiey ^;iot produced ? Mr. Abbott. — Does my leamed friend imagine mat a lieutenant would carry instructions from the Secretary at War on his person ? Mr. Devlin. — We bave no power to control the action of tiie Court in this matter of granting delay, but I protest against it. Judge Smith. — I hâve not givwi any judgment as yet, Mr. Devlin. . * Mr. Devlin said he solemnly protested against tMs delay ; and, if it were granted, he doubted very muck whetiier he would ever be instructed to appear m this case again. It was the second time in the history of our Courts that wken prisoners had voluntarily entered upon their defence an applioatùm of this kind had been made. If five of our own citizens were before the Court, oharged with the commission of crime in ^ this Province, after the évidence for the prosecution had been gone into would a delay of thirty dayâ be granted ? It was the duty <^the counsel for the prisoners, w^en ve ^eir dients w ere brough t np^^ < ^ .^_„,„ informed theTlourt that t^ey were not in a position to bring fi)i1rard their évidence, that their witnesses were absent, and then to request «'.. --/ -i g 181 ihe Court not to call upon ihem to enter on their defence till they ytexo fidly propMed. This application for thirty days' delay vas made wi^o^^ ^^^^^ being a tittiie of endenoe to show that difi- genoo' had been nsed to obtain évidence for tiie defence. There vas no précèdent to justi^ a delay of this description. The Ameri- can autnoritieB cUd not show a single case in mrlnch, (m their side the Unes, s^ch an {q>plication had ever been granted in behalf of a fautive chûmed 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 tlûs delay was granted, he really thought that the Extra- dition Treaty would, as far as Canada was concemed, be considered a dead letter. Jadge Smith thought that Mr. Devlin in his remarks, regardmg the Court, had gone a littie too far ; he (the Judge) had simply questioned the counsel to know from them if it was necessary to hear an argument of the case. He had stated his reasons why he did not wish to décide this point peremptorily . He had given no reasons for his inclination to granjb this. delay, orfor declaringhiswish inthe matter ; yet Mr. Devlin had attaiked him as having decided the case unadvisedly, and, without he^ring the Court's reasons, had almost charged it with a déniai of jijstico. Now,taking the latter considéra- tion alone, what déniai of justice could resuit by giving the prisoners a delay of thijrty days ? If they could not produce any évidence of the kind they wished, where was the injur^ to the prosecution ?— those unfortunate prisoners would hâve to be surrendered. But if they. should produce évidence to change ^the ojânion as to their liability to extradition, surely no one could complain, if the testimony be acoording to the rules of law and justice. Where was the injury ? None possible. The Court did not'mean to say that what thé defence desired to produce mightbe bénéficiai ; but the delay would simply ^ve the prisoners the means of saying all*they could say in justi- fication ofthe act'which their opponents designated îm act of robbery, but which they tiiemselves contended was an act of war. If they were robbers they could not escape from the position of siich, even granting the delay. In order, therefore, to enable him (the Judge) to judge aocurately and correctiy as to the position and quauty of the acoused, and consequentiy as to the nature of the offence charged, it was but fair to those men to hear what they had to say. Whether his opinion would be borne out ultimately, when he came to assign his reasons, was another matter. ifr. B^^ne. — ^But we can't withdraw the point we MÛsed yester- y , HB our view of this matter. Thé Judge. — No ; but itmay be reserved, and heard o n the merits ofthe case. The grei^ argument ofthe prosecution was, "why^" not thèse men prodwe the papers rô ï\ é mm ijii /n i ni*M*>gViw^^^p*wi^^ \ • ,. 182 ^efençe before ?'' Now, we knew the position in which their country wtf placed, and the difficulty a^teniîing a joumey to Richmond. How was it it possible to get within even a reasonable distance of that City at présent ? /The prisoners were placed under «rreat disad- vantages in this resgffct, and it was the duty of the Comli to afford theœ the means oÇat least, makmg known the nature 0/ their defence. Considermg the difficulty and danger encountered in reaching Richmond, the delay asked was not extravagant, and not of a nature todefeat tiie ends of justice, according to the Court's opinion. It 18 dear to my mind that anythmg like verbal testi- mony m this matter will be insufficient. Mr Abbott— W^ wiU endeavourto give you the best évidence, and in a^ case we shaU proceed according to the rules of évidence. Andif we offer évidence admissible under thosp rules, we expectit will be recoived. - The Judge. — Oh, clearly. i^r. -4*Jott.— I shaU not' argue the question on its merits, M the Court is disposed to grant the delay. But notwith- standing the st^tements of the leamed counsel, I maintain that this apphcation is by no means unprecedented. On an appUcation S^/„ °î!fî "i ^r"*^ (Burley's.case) the Court*^Vanted thirtv days delay for the same purpose ; and Judge Short, of Sher- brooke, also lately granted what heconsidered a suitable delay for a similar object. Judge Coursol had also given thirty days' delay m this caa^ for the same end. They had adminisj^red jistice in the United States, on occasons like the présent, when their passions wew not excited as now, in a similar manner ; and there cwild be no doubt, many instances could be cited in which the United States Courts had granted delays to parties désirons of showing that no offence had been committed under the Treaty. In the very case cited by the opposite counselyesterday, in which the plea of insanity 1 «.®?u'''"^®^i**'® ^^*>3r-Gener^'s décision showed that thi pleal^ been thoroughbjr Investigated. Then, again, m the case ^f the deserters from Hahfax, whose^ extradition from Boston was demanded—not on the ground of their being deserters, but of havmg committed a robbery— what was the answer ? i< vr ^«'*""^The case there tumed entirely upon the word robbeiy. The men had stolen the militaiy chest, aud the Court held^Twas a larceny and not a robbery. MrAbbott.--l get my information not from any spécial law report — tor I hâve been unable to discover any— but from theordinary newspapera, and I understand that the extradition was refiised be- ^ause the deserters crime was oompUcated with their désertion— an ' t.ig— - ;. — ; — ~""-x. "«o vx/ui^uvaiieu w«a ineir aesertion — an ^Wenoe «f a-ehsracter not contëmpS^dTîy Ifiè^^aty. Wq aïf know that when McKenzie' murdered orcaused to be murdered A',. 188 Colonel Moodie, and fled to New York,- tho Govemor of the State refuBed to issue his warrant of arrest, that the demand for his ex- tradition mightbe tried. The Attomey-Greneral of the State dien gave hÎB opinion that there could be no ej^^dition in such a case at ail. Though the treaty had not then béen I>»|8ed, the State Judges were disposed to extradite as a matter of^côinity. 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- édition wiyj refosed woa, that we had a rébellion in the Province. The then Attomey-General of tho State of New York set forth, in an daborate opinion oh the case, that there was no instance in the history of International law of an extradition being^granted where the fiigitive's offence was complicated with any crime of a political nature. We know also, in the case of McLeod, who went to eut "out the " Caroline," when on the American side of the river Nia- •gara, that though he had no written instructions to justify the act, yet in conséquence of that act having been adopted by the Govern- ment of this country, the Fédéral authorities,' through their Secre- tary of State, acknowled^ed it was a sufficient answertothe charge ■of murder preferred against Wm, and that he should never hâte been tried by the State Court. Mr Devlin. — I admit that. But the ciroumstances were différent from those of this case. Mr Abbott. — Oh, the circumstances were différent, as we shall «how by évidence we intend to put on record. There was no nationîd war at the tirae of MoLeod's act, and besides, he held no <5ommis8ion in the British service ; and there was no acknow- ledgment by the United States of any ^elligerent powers in Canada. There are a dozen pohxts in which the case of lieut. Young is infinitely more favorable than that of MoLeod. I merel^ mention thèse faots to show that the assertion that a delay of the kind asked be unprecedented, is éhtirely fallacious. I could produce many more mstahces if necessary. Mr Devlin said the steamer " Caroline " had been engaged in «arrying munitions of war to the Canadian rebels, and that the party who attacked her was speoially jnstruoted by Sir Allan Mc- Nab. Mr'' Abbott.— l only referred to those cases to establish the .^neralprinciple. 2%e Judge. — ^I am disposed, under the circumstances, to grant tho delay asked for ; and believe it is best in every point of view to -affbrd every p ossible o pportunity to both parties to bringjorww^ 'f !' anr %Iiàt iqi^ benéfit èitfier. Mê Éonor, Counsel on both sides havmg oonsented, remanded the prisoners for thirty days, till lOth February next. ï-^'^-^ 184 Friday, lOth Feb., 1866. On the deimà of the Président of the United States, for the extradition of Bennet H. Toung, et ai.: Hon. Mr. j Abbott said that in conséquence of circumstances which had o^curred since the application for the 80 davs' delay had been made, ïie ahould be obliged to make another application for an extension of that delay, the reasons for which werVset forth in the lollowing affidavit : Jjfn^ttff. JÔMW5- and Marcus Spurr, two of the prisoners whose extradition ^ sowght in dus matter, being severaUy doly swom ÎÇ?!^'^ ^y •"??* iinmediatelT upon the gnmti/g of L delay of tiurty days awarded to them by the Honorable Mr. Justice Smith for the purpose of obtaining from Richmond, in the State of Virginia To. * Confederate States of America, seceding from the ^n of States, heretofore known as the United States of America, cer- tain dooumentary évidence material to their defence ; thèse dépon- ents and the other pnsoners in custody on the said demand caused messengers té be dispatched by différent routes to Richmond afore- said, with directions to penetrate through the Unes of iiie said United btates, the, parties prosecuting in this cause; aad to obtain from • *u L**^-f "î^' *^® documents and évidence already desoribed m the affidavit abready fyled in this cause on behalf of the said pnsoners, on the lOth day of January last past. That the first of Je said messengers, namely Lieut»nant S. B. Davis— an oflSoerin the army of the Confederate States of America, who volunteèred to proceed tp Richmond aforesaid, with despatches specifyiiiir the documen<« reqmred, wid requesting their transmission— was «> dis- patched on the tenth day of Januair hist past, and was arrested by pereons ^ the employ of the said prosecuting parties, the said UmtedoStates and yas by them dettoned, on the pretence that he was a spy of the said Confederate States; and was subjected to a tnal, before a tnbimal termed a gênerai court-martial, convened under the orders and direction of the said prosecuting parties at Cçicmnati, m the State of Ohio,and comi^sed of theiTofficen, upon ^e charge that he the said Lieutenant S. B. Davis whonî the said prosecutmg parties arraigned before the said court-martial under that name, and also under the name or eUioi of Willouahby Oommmgs, was a spy within the meaning of the laws of war, and that thereupon the said Lieutenant Davis, was by-the said tribunal • found Milty, and sentenced to be hung by liie nèck untU h» should De aead— whigh^ findin g mmL sentence w er e c onfi gaaedby. Major General Hooker, an officert)f the army of the United States c^- 4 il : 185 man^liog th« Depiurtment \rherem the ewd court-martial was held, and w^r© by him opd^rpd to be camed into ©flfeçt on the seven- teenlib dftj of Febïuwy instant. The vhole notwithstanding) (aa theie deponentB are ii^onned and believe) Aat the eéà court-mar- tial and the aaid Mlâ<« General HookSOr well knew that the said Lieutenant Davis was not a spy, but a.br^iyejMad dirintereated man, who had voluntarfly e«K)fled hunself "b ihe rislt of any contingency that night happen to him, that he mij^t aid in placing full évidence before the pre^Bng judge, reapeeting the matter under examina- tîonin this cause ; and that he waa not eharged vyith and did not cany any other dospatohes or information than auoh as was exclu- ftveW e<«neoted vrià-the proceedings in ihis matter. And more- over that thèse facts vrere ail stated by lieutençjot Davis to the said court-martial upon his trial. That thèse déponents hâve been credibly informed and believe that the following is an exact copy * of the gênerai order of the said Major General Hooker contaming the record of the said trial and sentence and his approval thereof : Hbadquartbbs, NorthbenDbp't, \ f^ Cincinnati, Jan. 26. \ GBNBRAL OBDBR NO. 4. . . Before a gênerai courtdnartial which convened at Cmcinnati,. Ohio, Jan. 17th, 1865, pursuant to spécial orders Nos. 212, 260, and 258, séries of 1864, from thesé headquarters, and of which Lieut.-C!ol. E. L. Webber, 88th régiment Ohio Vol. Infantry,^. Président, was arraigned and tried S. B. Davis alioê WilioughM|y €umminga ; charge, being a spy ; spécification isf that said S. Sy^ Davis alia$ Willou^by Oummings, a rebel enemy of the Umted States, and being an officer of the so-cal^d Confederate States of America» 4idi on or about the first day of January, 1866, seoretly and m disgulôe enter and corne withm the lines ISTRICTOF MONTREAL. In the m^ter of the .demand of the United States Of Amerioa for the extradition of Bennett H. Yoang et. al. John a.K. Houghtm, of Montréal, in the diatrict of Moritreal S'trt;tnt!:ss?'dî*'^f /''^ "T°' ^'^'^ -^ ^^^^i s Z «lî^ daj of January Jast paat, at the written request îf^T mT*.*: , «^^'^ ^<*' **>« purpose mentioned inthe saîd request. That on the thirtieth day if sSd January dei)ow>S wrote and sent to the Hon. William H; iward, at Washin^XesS^^ ^ Ae ktter herewitb produoed nuirked B which letter^^rb^ Uni ^ived the same day and an an«wer the^eto wâs also bn ^ same day returned to déponent, Trhjch anawer tWs déponent re- C Jii' JCl^^fVr^ ""^f ^ ^^^'^'^ ^ producJS^Tarked refo^ i^ tiie letter of déponent and the documenta therem W^^S^A![T *^ r«t"rned to déponent in the said letter. That ^W tîS^'S^"^' ^i^ "^ *^^ JanuaÇTdepoient ofatainr»^ in^î nZr ^ Excelfency the Président of the ^nited States, Td ujgedjyçn hun to grant the permission which deponent^hjS bèïa requW to procuré; But that His IxceUency (^clined T ^^ Jueh permiBsion or even to aUow déponent to proceed to GeS Gmt B amy, that- m aiw>lication .for dôcu^L might be S Uw Epcellençy's words bemg in speaking of the said prisoners tiiatlhatthey wererebels; that ih^^^^n mVÔ^UlSi arou^d ; and thathe did- not s^e thi it was aiiy part Sf his buSnïï! to helD them. , That,howeyer,Hi8 Excellenc/rruestTdeZr to enjeavour to see the Honorable W. H. Sewa^ on the sEt ^y wwte the followmg wordâ : « Hou. Sec. of State, please see t^ gJntlemaI^ who is tiie gentlemaa fiom sand eight hundfed and sixty-five. ) (Signed") J, SmïtSÎ The following are the papers referred to in the . •^ -J-^ ,, ' Montréal, Jan. 26, 1866. Mr. J. G. K. Houghton: ' Dear Sir, — You will will please procëed to Wat^gton for the purpoi^ bf seeing t^e Président or ether officiai, and, if pos- sible, obtun a pass i>érmit1ing you to prooeed to Richmond ; and, if, possible, you wul- please go on to Richmond, and take the , necessary Steps to procure the necessary évidence to oiyr defence. (Signerf) BENNBT H. YOUNG, Ist lient. P. A. C S. ^ MAROUSSPURR, SQUIRE T. TEVIS, : ,. C. M. SWAGER^ , * ' 'W. H. HUTCmNSON. ^ (True copy-^-J. G. K. Houj^ton.) : * B. - ^ Ebbitt House, Washington, Î).C., ° . / 80th Jan. 1865. Sir, — l 'hâve the honor mpst respeetfully to^^eùdose for your perusal thé follofifihg dooumçnis : Ist. A' letter from Messn. Bennett)9..^oung, Ist Lieutenant P. A. 0. S. ;-.Marcua Spurr, Squire T. Tcvis, 0. M. Swager, and JSjn.^H^Hutchinfl<)n, now priflonera in Montréal, keld on anr~ " i!%tâoR for extradition by gle Uidted States, i4 the matter of ti^e -St. Albansraid. . - "^ m ,^ a f I ' 'H îf ' Al * ï' "^ 'I J ■f y ' l'i il r f ■'/' 190 ^^ 2nd. Stamped copy of an affidavit bf Bennett H. Toun«T and Marçus Spurr, two of the above named prisoners, ^ h the order of the Ju(ïge granting tiie delay of thirty davs in the Z^àlî^Au^^ apphed for on behalf^of ail thelbove meSd^n^^ '®*^^'^' 6TÛ. atamped copv of an application by the said nrisoners t^ Ha remanded to the gaof at Montïïâl until the ten Ka^of P.Caï? . next, m ^ew of the above mentioned delay for the^aSduS^ évidence havmg been granted. «"«uction ot Aa your Excellericy wiU nèrceive, the affidavit enclosed ia th*» basis ot an application for a^Selay of thirty daya in ïlvestiS! t,on of the charge against the said pnsoLrs V thrpXt^f procunng évidence fromRichmond, as stoted in the affidaS^et sary and matenal for ther defence, and which they are unabb tt . procure m Montréal or Canada. ■ J »re unaoïe to fJ^L '^**^'' '«^?-« J t? authorizes me to proceed to Washington that ïbjer^' "^ "^'"^'^^^^ P'^ ^ P^'««^ *^ Richmoni S And the aim of thig présent application is to soUcit frora or through your ExceUency such a passer letter, or such recomln dation to the Président of the United States o^r such other oSs I ZflH' "'"T"? ^ T^y ^ ^ *^^ "^^^^^^ ^«d wiTh thtend rw.iîn? -J .K 'P'«*5'^^^/'Ç'" your ExceUency to thô concIuS porfaonof their affidavit, whei-ein the prisoners dépose t£» tthSf K^'^.^!î!i^,'T?" ^""^ '"»'"°S tWs application iTtoXethl whole tru hfully before the Judge before whom th^ SoSinï^ for extradihon are pending ; and I feel confident thatïï 3 hke thw, invtolving issues of life and death, and grave and m^!! tous questions of international la^ ; one t;o^n wS TheTZ^' ' Stetesof America ^ith their whok poweTa^ iXod up^n o^^ o&r««5'%rt ''^^'"'^ '^' senior of whom is but asT^^ Sî P ' T''.*^^*^^''' y°" exceUency wiU not refuse, or aS tïniL'lfA « ^.^^«'îr"* ^ 'ff^i thèse prisonera ^' Sr! tumty for tk full and complète exposition of the farte n,. t^»—!-* to soek B partial or «c parte jadgment """"opemuttea I would idso toge «pon your liooUency fte &ct Ihat, aotin» in their Civil re«ula%nfl of the Unîted States. ^miiary or , -^"Lrf "^ ""^ humanity, therefore» and relying upon the umverttl Dractice everywhere prevaiKni of penStâg Wm accused of vcnme eveiy fecility for obbSûng WidenS?neSîJ I humbly refer to the enclosed documents and mak^Ss S^^-'- ^'*, 191 tion for a pftss or permit jto proceed to Richmond, and for ail the necessary documents, letters or recommendations nècessarj for the purpose of procuring ail the documehtary évidence in %his case on Dehalf of the above mentioned priBoners, whose extradition in the matter of the St. Albans raid is now sought for ; and I assure jour Exoellency that I will strictlj and conscientiously observe / such orders or régulations as may be ^ven to me for my gâdancé - while upon the route. , , , I would.also anxiously solicit the favor of an interview with , your Excellency, and an immédiate reply, as hours are now of?*^ moment. jÊ^ I hâve the honor to be, Sir^ yôuif Ex^Hi^cy's içost obedieiït flAVVftiTtiî (Signed) ^ ,j J. G. K. HOUGHTON, Advocate, Attomey for the prisonerff whose extradition in the matter of the St. Albans raid is now demanded. To His Excellency W. IL Seward, Secretary of State, U. S. (Copy.) C. iP «.-r cl ^y \ wt#«i*EBaifa™*i>«t^'.'> -■ MEMORANDUM. Department of gtate, Washington, ) Jan. 30, 1866. j J. G. K. Houghton, Esq., advocate and attomey for the pri- soners whose extradition in the matter of the St. Albans murders and robberies has beet 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 thie United States, need no foreign média- tion. So long as they reib^ under the protection of a foreign govermnent, and a demand upon that govemment for their delivery to the United Statos is pending, communications conceming them can be received only from that foreign goVerqment through the cuBtomary channels of national interoourse. A copy of the jpapers submitted by S|r. Houghton hâve been taken, and thô ont^uds are herewith remitted to him, and he is ezpected to leave we United Statos without orossing the military lines, or attemplân^ to entor the scène of insurrection, or to com- j p afflMite mt h thft ms uri^nt g, _ ^^ ..;.^,^.^.^ ~ ...^^ (Signed) WILLIAM H. SEWABD. (Copy.) ■/ 'i'4- f'U H 1 1 > 1 i T .: 1 ï i J .T <«*-^ 192 I Room No. 38, Ebbitt Honae, ) Washington, D. 0., January 81, 1866. J To the Son. W. H. Sewardy Secretary of State, U.S, : Sir, — I hâve the honor to acknowledée the receipt of youç com- munioationmarked " Mémorandum," anddated Department of State Washington, January 30th, 1865, informîng me, alnongst other thmçs, tiiat the Government of the United States can ^pld no com- V mumoation irith me upon *he subject of the St. Albans' raid, and lUsp that I am èxpected to leàve the United States without crosjdng the miUtaiy Imes or attemptmg to enter the scène of insiutection or to communicate with the insurgonts. ' s^ I would, however, most respectfully submit for your Excellency's considération, that this mommg, at about the hour of ten o'clock a^., at an mterview with His ExceUency the Président of the Umted States, the Preside«t, although refusing me the pass or permit to proceed to Richinond, for which I hâve appUed to your ExceUency, and then did apply, referred me to you, and gave me a card of recommendation or order, addressed to the Honorable Secretary of State, of which the following is a copy : " Hon. Secretarv of State : " Please see this gentleman, who is the gentleman from Canada spoken of yesterday. UT oi . -.Q^c» "(Signed) A.LINCOLN. ^'■Jtsaaxj, Slst, 1865." Previously to receiving your mémorandum, I presented this card to your ExceUency's Secretary, to whom I was referred on the first occasion of n^ seeking an interview. That gentleman, however, deolined to report it to youruelf, or in any way to fiwsilitate an interview. I would reroectfollr, but firmly, again ask for an interview with your BxceMRcy, and an opportunity of personaBy urgmg upon your favorable considération my apphcation for a pass to Richmond for the purpose of procuring the necessary and material évidence remnred by my clients ; and I would venture to urge that if any techmcal or diplomatie obstacle ever did eidst against my holding any coimnunication with your ExceUency or the Government of the Umted States, this reeommendati The Court, he stùd, ought to be put in possession of the whole facts of the case, before it could décide if the ofience was dne 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 Confederate soldiers, aetmg uùder a duly commissioned officer, authorized by^ their govemment, through its agents; were denied. They contended they could show t£at they were foreigners quoad the people of the Fédéral States ; owing their alle^ance to a nation at war with the Fédéral States ;— soldiers of tbftt cation; and acting under the orders of the constituted authorities of that nation. Sup- posing thèse facts to be proved, would they not conelusively show that âere had been no offence within tbe meamng of the Ashburton Treaty, and therefore, that the TreaW and the statutes based upon it, did not apply to i^ case at ail f It was impossible to deny tliâff ; and his Jeamed friend would not contend they ought to be extradited, if the allégation^ they made were true. Mr. Bethune raid tbat yttA a question the United States had a ri^t to tiy, and that it could hâve no effeot hère. Mm. Mr. Abbdtt sdid, he eertainfy ^d not expect to hear \m leaimed finénd «ssidM such a position. It would place the Judge iik ièhe pontioii df a miere mittflteriàl offiœi^ ; entirely deprive hmt of aHjiidid«l^aoréti. "'M H: ) •1 ' A ■s- -«H ! f '> M-*''; l 196 ^' dead letter. Every gênerai in the Confederate armieg, who took refuge hère, could be extradited as a murderer. Sùch a doctrine he ventured to say, was entirely unsustained either by principle or précèdent, by the treaty itself, or by the mode in which it had bèen camed ont. And if the statements of the prisoners were true"^ and were proved, their extradition would be revolting to the sensé ' ^ of rustice 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, when the passions of the people were not aroused ; but it was a mockery of the most cruel kind to talk of such a tnal m the case of |hese men. They would be placed before a Court and jury personaUy hostile to thpm ; oomposed of enemies^ u^amed agamst them to an unprecedented degree by the virulence of tiie struggle between the two sections. The fkir trial they would probably get would be such a trial as lieut. Davis got, who was under sentence of death, me^ly for asking for évidence for them ; >. and the s^venty of his treatment for a minor oflFence, shewed what . they might expect who had sacked and bumed a Northern town Cr they would get such a trial as the crews of the privateers and men of war of the Confederate States got, who in the face of their recogmtion as lawful belUgerents by the civilized worid, and by the clearest prmciples of international law,were put upon their tnal as V 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, m conséquence of a diflFerence of opinion amoni *ûe jnry, otiiers had actually been convicted as pirates. If the évidence required was material, the Judge had acted wisely and hunumelv in granting delay. And now that a further delay was asked, because the first had proved insufficient^those who resisted the apphcation were those, who by tiieir own acte had reh- dered furth^ delay necessaty. 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 abouttohang another, and because their précautions were so carefully taken to prevent communication that the others had not been successful Such an objection from them was a violation of the aimplest raies of justice, and should receive no weight from a Court adminiater- mg justice by those rules. Mr. Laflamme, Q.C., tod Mr. Kerr followed on the same aide. His Honor Judge Smith said, that in granting the former appU- cabon for delay he had carefaUy abstained from giving an opinion as to the materiality of the évidence proposed to be oifered ; and .had that -_ ^ -- w— w 'V..WUVV |rau|nwou IPU UV OU B0t4&4^hfe^)eét^adm^ed^mj^t)Uigati(Hi^^»mt had been asked for, and had been awarded. So m ^ëdetey précèdent or V. 197 argument could, therefore, be drawa fifoin that, in favpr of the pré- sent applioation. But the argument had taken snch a toinn that hé now felt called upon to intimate, at least in gênerai terras, what hi» ^ew8 upon it were. He certainly could not a^Lmit liiat his fonc- tions were purely ministerial, and that upon certûn affidavits or dépositions bemelaid before him, he was bound to commit for extra- dition. He had the right, and it was his duty, to hear ail that waa to be swd on both sides, and to judge wheûier reasonable cause existed for believing that one of the ônmes specified in the Ashbur- ton treaty had been committed, and that the prisoners yere 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 shevm that such a person hadkilled the deceased in self-defence, it would be impossible for him tPorder his extradition. So also in the case of a woman killing a man in defepce of her chastity. He would not be satisfied with Hie évi- dence that she had taken life — if évidence was also producéd to shew that the cause for which she did so, justified it ; or rather took away from the act the chamteristio of the crime of murder. This was his opanion, and he "could not feel himself justified in departing from it, whatever may hâve been the nature of any récent décision upon the subject. So it would be in the présent case also, if by évidence placed before him the acts committed by the prisoners were withdrawn from the purview of ordinary munici- pal law, and shewn to be properly liable to be judged by the prin- ciples of international law alone. The treaty of extradition was intended to meet cases of ordinary crime-^M)f the nature specified m 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 idl the English judges m the Gerity case. The évidence of the actr donc in that case was con- clu8ive;^while the évidence ot any belligerent 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 waa asserted, was équivalent to hoisting the Confederate flag ; and it was tw that reason that the Judges declared that they could not say that the ma^trate had not sufficient grounds for committing them. But if thev had been prepared with proof of their authority — if they had produoed their commission from the Confederate Gov- ernment ; it was plain from the language o^ tiie Judges that their conclusion upon Uiat point would hâve ibeen cÛfferent. But the affidavits produoed do not state with preQitdoi) what was the exact joatuiAc^.tbe évidence tobe ad duce d îvaBdh&waa^^&ertfore^ aaiJl>le to jud^ whether or no that évidence, if obtûned, would be material to the issue. As to the other branch of the argument, it should be ■Ùf- k n. 'â t v II ^iSmy*ftyj^ft-^i^iWiîfi' •,-iti\ tilMr^iltfr ifyJi, ttJ\S>- i «^J- «tô^i <■ .v'^-tC^ "-^^^y^ ïrt ^f^U^f^i^ i'-iï; f \ 198 remembered that ^ United States were anhappUy engaged m a ^ar of ffgjatac proportions, and that it appearoï^to le aSrtof aÎ §îf?« t^r^*^ be ejguer the oapitîTcitjr of the cSSderotî f^^lT ï*!'»^ " P^'^^"' ^* '^^^ P™'»»^ impossible to X this State of things, and in anj case it was aiatter over wWch he jf\ TTfu""? r^ï'.«»d ^W^h oo«ld not afffect his decSon If he held that tt^Vaction of the Fédéral Govenunent inTrî venting access to R«hmand should ei^titie the prisoner» to forKr delay-he should yirtoally hold that the investigation coZ^t be proeeeded with till the war tenrjinated. HeS, th^tC refiwe the apidication for ftirther delaj. ' ""«^reiore, It was then aj^ed that the examination of the witnesses should EVIDENCE FOR THE DEFENCE. Jokn a K. HougMon, of Montréal, AdvilT!!:S:n"^'e'^'V fiftti of Januaiy last, I was engaged to proceed to Washington to t t^r^Zt ^''^'''^ ^ ^^*^ ^ ^---*« -^«^ I arriVed in Washington on Saturday mommg, and imme- diately attempted to obtain an interview Vith the îre^donTut did not succeed until the thirfy-first of Jaiiuaiy, whTi W an mternew inth iho P«sident,''and askedXT'pT to go to President refased to give me a pass. I used every effort to bduoe tlxe Président to give me this pass ; he said « No,l wiU not ^ese men are rebels, tiiey go eutting and slashing aro^ndTand I dfnot t^ I ; T *^*™ '"«®<* "'y ^^^^^^ «Pon the Président, and findmg^at I was unable to sucoeed, I asked for a3to iïïo ^^f^mÈ^l'^r^^^' "^.i^- thence to foS*:S^ sen^r to Biolunond to procure évidence ; the Président refosed lendeavored to influence fen again, when he md^^^elT^^ a^cretary of Stato- and distinc^Uftised to give it SseT Im mClT^^'''' ^î f^Jr^^ry of Steto, the Henorawï Mr Seward. The purport of this éorrespondence is correcfly shown Ï^J!^r^K7P™'^"'*?^*«^y*®<^^*y««t«rday. SeWdS I was to obtain was .documentary. The princi^ instoS S ^vemme^^of^tbrCoBfederafe Smm irecbgnizmg what a known aa ^e St. Albans raid that is the acte of theSpririoIerê Orosi^atmned under réserve. -1 was employed by the prisoners 986 aot she ad to )»- J d. be Id ie m se of le \ n > •s • ■■ . ' ^';,*:',;;M..;V 199 Uffough their agents, by a letter which I fyled with mj affidavit jesteraaj. I hâve not penonally had any conrersaiàon with the priatmera. I was never mformed by the pmoners, ihràagh their a^ratfl, or by any one, that Président Davis had refused to recos- nuse the St. Albans nûd, and further, I say not, and hâve n^ea. (Signed) J. G. K. HOUGHTON. WîUiam W. Cleary, oî Richmond. — I am an Attomey and Oounsellor-at^Law. I hâve occupied ipyself lately in endeavouring to procure the passage of a messenger to Richmond on behalf of the prisoners. One Lient. Samuel B. Davis was dispatched on the lOth of January last from Toronto ; he carried ,ihrough a.written paper to the Confederate govemment, asking that the authority for tiie St. Albans nûd should be sent to Montréal before the tenth of this month ; the précise document required was any gênerai order that might hâve issued authorizing the St. Albans raid. On the 14th 01 January last, anothejr gentleman was sent, carrying the same.request, and the same paper. On the 15th, a third messen- ger waa sent for that purpose ; and on the 22nd or 23rd January last, we heard that said lieutenant Davis had been captured, «m. therenpon another messenger was dispatched to Richmond for the^ same purpose. No intelligence has been received^of any of them having suoceeded in reachmg Richmond, or as to their fate, except Davis^ Davis had previously passed safely through the Fédéral lines. Otoèi-examined under reserve of objection». Question. — What are the names and places of abode and occu- pation of the three 'messengërs other tmui the said Davis, whom you assert were dispatched to Richmond ? Obiected by Mr. Abbott on the grounds — Ist, that an aûswer woula defeat the object of their bemg sent ; 2nd, would imperil their lives; 3rd, that their names and abode were immaterial OlHections maintained. The witness was then ordered to stand down for the présent. William L. T. Priée.— ^ar the last two years I hâve been a soldier in the Confederate service. At the %ie I was captured, I belonged to General Morgan's command. I know Beimet H. Toung, one of tiie prisoners. I hâve known hifai as far back as my memoty extends. He is a native of Jessamine county, State of Kentuol^, of which I am also a native. I did not belong to tiie same command as Toung ; but I met him in the service. He was Morgan'0 commande The date offlpmeeting wi4^ NftO''^''^ P'^' viens to my joining that command. Iwas one of the so^rs under 'General Morgan during-his last raid m Kentucky. The advanoed f '' A. . M 2< '•1 '.' I ! M r^ . -^£kskèu Mùfè&d (■»i4^«»*«,»«jV'««*-tV(B^^i*+-»j.-* ■W9VNM»-' **-. '«."r-W&r/^l**, -nisrîStV^îîJ -V" ! ':i .200 guwrdB jere dreÉeed in oitûens olothingr, ând 8o wew Morgan»» oommand always dwewd, except some Yankee garments and 5ver- coate. Bcnnett H. Young first raised the (ënfederatTaTt Jeeaamine County-that is; he waa the firet pewon that raiwfthe ConfederateflagtheretMatlknowof. ""«wraifleatùe Orott^amined—IhAYe b^en in Canada six weeks. I ptopped at a pnvate boardmg houae m London, Canada West. I waa nèVer m Canada before, or m the State of Vennont. I know also Mr leaws, who cornes from Jessamiae connty also. l'hare heard of ^«ite J ^r "°* ÎT »«"»«*;H- Young for tweniy monthS Colonel Cluke, m Ae umfonn used by Morgan'a command. The overcoate wom by ihe command of Morgan, mentioned in my exaS nataon in chiefwore Yankee overcoate. Morgan's command i^nerally wèartheclothesofcitizens. They are gentlemen K«'»»™"7 ^Mertûw.— Did Morgan's command carry on raids by going into towns by twos M threes, règistering themselves at Ëotels mider false names, and oanying only, aa arms, concealed weapons ? .commTd'!' "'* '''' **"** '*''*' "^ '"«"'*' P^^y «f ^^^ (Signed) WILLIAM L. PRICE. Sènry W. Allen.— I am aged nineteen. I was first nnder the command of General Buford; afterwards in the 14th KentacW cavaliy. I was also engaged bb a clerk in the Adjutant-General's office l know two of the prisoners, namely, Marc^ W ^d Bennett H. Young. I knew them.as soldiez in le C federate ara^; they belonged toth/ State of Kentucky I never saw Yoi^ng m the army. I saw ihim m prison, as a Di4ner of war. ^ They were in the "Sth KentuW caVX ' 1 hST^rî sonaUy «mt Ôarpus Spurr was 4n thatUgiment I aTerteffi when m prison, that Vqung belonged to Aat rerim^??The pnsoners were disWbuted in the pSon accordin^ Seir reri! mente and compames when I met Young there, md he was classilk as belongmgto that régiment. , ^u «e was cjaseii^ Oro»9-t^aminfd.—l now réside in the qky of Toronto, where I ^Tehvedforaboutamonth. I camé toïÏMida orthe' toÏTof December last. I saw said Benûett H. Young and MMouTsnuîr for the last time in the fall of J868, at cTmp DouX^?b^ ^eyeecaped from there I âm not aware Aaf tîiy S^e^ïcl' adathen. Ihave heard that the said Young was in Toronto^ w fedei Hutc ary, what Huto Conf some wasf an 01 The] Huto Mum secre with office frequ It u '--^cog nevei tures "A,. S and beliei a Jqne . Phxyi since ^ Tear and ' aboài The^ for U anyc SIX m ' aboul stayi] Mr. YouB Mont •or çij and] nions aadl St. i I?; (Signed) H. W. ALLEN. V-J«i ^^Sf ) WUXiam Pope WcUlaee. — I knew one of the prisonen in the Con- federate States, namely : Mr^Hontley, who answera to the name of Hatohiiuon. I saw hun at Wilmington, North Carolina, in Febra- aiy, 1864. Hia name in full is WT H. Huntley. I do not know what lùa firat initial représenta, but I imderatand hia second to be Hutohinson ; he is a citizen of Georgia. He iras a soldier in the Oonfederate anny when I saw him, in 1864. He exhibitôd to me some papers at Wihnington ; one of them was a détail bjr which he waa sent ont of the Confederacr. A détail, as I understand it, ia an order from military men to ueir subordinatea to do any ^itmg, The paper now produced and marked K was she^n to me by said Hatcninson at Wilmington. (Paper K is a passport to Wm. H. HunUley dated January, 1864, signed by James A. Seddon, sécréta]^ of war» and J. P. Bei\J4minj«ecretary of State, and sealed with the^seal of the Confederate States). I had previously been an officer in General Preston's Staff, and had recently reaigned. I havo freo^uently seen documenta of the aame description aa aocument K. It IS known as a passport. The seal appended to it I do not '^oognize. I suppose I hâve seen frequently such' seals, but I never took particular notice o'f them. I recognize one of the signi^ tares appended. to that document, that is, the^ signature of James A» Seddon, secretary of wi^r, whkh I hâve aeeâTvery frequentiy, and am acquainted with, and to the best of my knowledge and belief, it is uie genuine signature of Mr. Seddon, secretary of war. Orosê-examined under réserve. — I hâve been in Canada since Jqne 1^, with the ezce|>tion^^ two month's absence from the Plrovince. I knpw al! the prisonerg. Three of them I ealy knew since thôy were arrested for the St. Albans raid, that is Mr. Spurr; Teavis and "Swager, the other two, I knew before, that ia^Huntiey and Young. I formedtthe acquaintance of the tiiree first named aboàt twomonÛis after their arrest w^i. while they were in gaol hôre. The Wallace àrreste4 before is no jr$lation of mine. I was absent for two montàhs préviens to Christmas last. ' I do not know where any of the ^risoners resided before the nineteentb of October, or six montiis prier thereto. I saw Young and Huntley, in Hali&z, " about May last. I do not know where they were going, they were staying^ at à Hôtel ; they were not engaged in anv business. Mr. Huntley sud he was going to Bermuda, and Bennett H. . Young said he waa going to try and run tiie blockade. I was in Montréal, on the 19tib of October last; I left Montreid, about, six •or ç^t or ten days after the raid, for Hali&x. by way of Portland, and I retumed by ^t. John's on the overlana route. My compa- niona were G eneral Preston's family . I k now ail the prisen ers hère and one who is absent, but who was also engaged m tiie rud of St. Albans. I do not, know jhow many were engaged in thia raid> (Signed,) W. P. WALLACE. il "O ■ f (tUt "rr i! "^m ■ I •■' J: !iàA&'M^0^' »s«j?i ^ ,l^5» it* vjffl Ïi j "^IF / { i» n- ky ^ 202 _ Joseph F mteèw^.~-l jjave been exaigined befow in thià cj^ I hâve almdy «aid that I knew Bennett H. Young and Mai^M Spurr m Chiéago m Auguat last. At that time there wZ «oUected there for some spécial purpose. They went oTi^th Z at Camp Douglas. Ail the Confedefate soldiera thereNwe în STy""" with^each other. and knew what T^^ ^^ ^ Pnsoners Young and Spurr were there also, apd eoUins^Z ^ - f/«™«Jy f custody on a charge befo.^ Judge cSuSl aC SïtILd & w^ "eWpersons there (Confederate soldiez) fnd Slt ÏiZ^w«Î^**^k'*^ !• ^'^ <*° '^°'* «*«r expédition, and that therewa» to be a di^ion of the Confederate wWier^ «^re, befo^ «ud Yomig bnderiook this other expe I ï^deïïCr'th":,t ^•/'' ^**!!' ^^ YUg aTS Se m LvemS^t ^^^IJ^^'-^^^^^ »«thorized by the cSderate -p uovemment. They were not proposed to. me for anv ferivate benefit, and we intènded making thïm for the pur^of«^^ ou^ Oovemment and not our4lves. I did nrS|iffi? tûôse^, and for the use of any recruits we might «et. -1.^ '^''^'*^*'" &c?merf.^And further saith not, and hath (Sigpod,) J. p. BETTDSWOBTH. ■W wii'!^4®i ^ Kîchmond, Kentuoky, qp to aerate a«i%!Îr?L *IT' "^^ 1»^* of «»e «me sînce ««rH«ï; «P'a -^ T^' f*'* °' "^® ^'^^ "1 prison, aod the latter portfon of a in Canada. I escaped from prison at CmdO S,3«S Kenhicky c^^valry, second brigade of Morgan's c^and. ÏSw #5 • 5 ■ «J join down 5 the n( r > was m ■ >- - 1 ,<=> «imew 1 ' M questi< . being ment^ J itis tl Mr. Y the tin t Idoi instn» f me hifl had ai aastaj • when to tak< iSÏ- / Xfi: *■ ,f ' '1 / 208 ill tho prisonera. I recognize the prisonor, Mr. Teavû, as beincr a rela^vejVjof mine, and jiiaving been in the aamo Company with "^ m the amnj, and I havo seèn him also in sevéral batdes. "^ 'len prisoner by the Federats on the Ohio Raid in Julv, Te was takèn to Camp Morton. Ife was a citizen of tne #te of Kentucky, apd from the sàme Coiuity aa mjself. I mit flve priaonera in l^e Ui^ted Statea l&at autumn, four of them in Chicago laat Ao^st, viz. : Young; Spurr, Hutchinaon, and ll'eavia, ahd raaw Swager in Vincennea, in Indiana. By Hutch- fhaon, I mean the priaoner anawering to that name qi^thia examin»- tion. I do not know bv yrhat n&mh he 'was known m Chicago, but hia real name ia Huntlcy. ïhero were probably aixty or aeventy , Oonfederate aotâiors in Chicago at the'tJme mentioned^ I aaw about fifty myaelf, and I undehtood there were many more there at the' timo; our objoct waa to releaae the priaonera at Camp Douglaas. — >. .Thiii expédition failed, and upon ita failure another expédition waa organized by Mr. Yourig, and another waa ôrganizod by ànotfaer ., gelitleman,' whoae name I do not wiah to mention. Mr. Young'a expédition waa againat the town of St. Albans, but upon a little more extended plan than waa carried out ; one of the objecta was ' to bum the town. I apoke with Mr. Young about the expédition againat St. Albana — this waa at Chicago^ before he left, he aaid he waa going immediately to 8^ Albana, and that he had ttie men to go. I was' apoken to by Mrî^ Young to be one of tHe party, and I also apoke to Çaptain Collina to join the party — the aame OoUins . who waa a priaoner hère in December laat. I decided at that tipe to join Young'a expédition, but finally changed my imndr«fi^ weoit down to Southern Illinoia. Collina went with me andleft me there, the next I heard of him waa that he was a priaoner hère. Young waa makiqg up.tliia party in the capacity of commander of it. I .■rf '4tnew that Mr. Young had the authority to rwse the Company in question. , I aaw his authority in writing, in Auguat of last year.— being shewn the paper fyled by Mr»^oung at hia voluntaiy atate-* pent, and identified by tiie letter N on.tiiç baok of it ; I aay that it is the authority I saw, and am sure that itis theidentical paper. Mr. Young himself shewed it to me. I read it and examinn^ it at the time he shewed it to me, whioh was beibre he went to Chicwo- I do not remember podttyely wheiher he ahewed me any orner inatructions at that time ; but I am positive that he did not shew me hb oommismon. He diewed me tiie paper to satisfy me that he had authority fipcpi Bichmpnd, fût the purpose of collecting a parijy' as stated in the |>aper. He eùiMifitnti toat his instructions were, whenhe had ooll ected thft4p i ri | i^t^m reporiio tfae H ono ra b l e C . C^ Clay, who was Commisnoner fôr the Oeiûfedesaito ^tates hère, imd to ^ake his instructions trom him. The foot of Mr. Young holding t.- f^*' Ml il'! V-î)v; ri-^ \ H^ I ' ■ ■'*■> K' â V ^':.v • '204 • Z L Confederate Boldiers.» I did not see them mySf, bu it ri,.v ^.î ] 5 T ^ "^^^'^^ ^ instructions from said Mr fwlii îî • ®'*°?^^ **" ^*^ o"* ^ expeîtion. I understâS m tûe anny. It would be unpossible to describe the dresa of Mnr. ^S^^W Confederate uniform, remamder plam, some in colore. I hâve seen a whole régiment dressed in Y^kf^ Sn J. ciotmng was obtained, was from captures from the enemv From OBjected to by Mr. Johiison and Mr. Bethmie. ««J!Sf*i "~ . ^^^^ ^0^ a°y. of your peraonal knowled^e "Sed^JlT "" ^*"«^PSÎ*« i^dividuals and banks were ^«i'/o^i 'rT""' ^"'^ ^^^'•«» 8^0* or put to death, though unamed and unoffendmg ; and the property of privateiSividuSs StSj nlT J*« 5>l>Jocted to by the Counsel for the Uuited otates, and the obiection was maintaiaed. i>e Counsel of the United States object to the whole of thia (Signed) THOMAS M. STONE. ^ % 206 OharUt Albert Withert.—l am a captain in the army of the Confederate States. I was adjutant-ceneral on the staflFof General John Mor^ at the time of lus death ; and I was taken prisoner when the General was killed, on the fourth day of September last. I identify the prisoner, Charles Moore Swager. I saw him first in the Oonfederate army of the Potomac, at the commencement of the war ; aâd I was also in the same régiment : he waa in the first Kentucky Infantry. He was afterwards, in December, 1862, in Company H, of the Second Kentucky Infantry. He comes frorn Kentucky, I believe. I am acquainted with the signature of James A. Seddon, Secretary of War of the Confederate States. Being ehown and having examined the document marked |il, produced by Young at hîs voluntary statement, I déclare the signature of James A. Seddon, Secretary of War, thereto appended,» to be genuine. Being in the Adjutant-General's department, I hâve seen ail the commissions. Instructions and orders for our command passed through mj hands officially, and I hâve consequently seen a great many of his signatures. I know Mr. Seddon personally. I hâve been in his oflBce frequently, and seen him writing. The document, M, is the onlykind of commission we hâve in our service ; it is simply a notification of appduatïnent. I hâve never seen any other kind of commission ; nor is there any other légal commission than this, except that General Morgan was ipermitted to appoint his own subaltems ; which appointments were afterwards ratified in the usual form ; and such documents as document M, were then used, I hâve examined the paper. M, and to the best of my knowledge and belief, it is a genuine document. I hâve no doubt of it: I hâve four com- missions like it myself. When thèse commissions are issued, there is an oath accompanies them, which bas to be filléd up and re- tumed. Being shown, and having examined the document N, produced by Young at his voluntary statement, I déclare the signature thereto appended is genuine. I hâve not a particle of doubt about it ; I hâve seen it too often. I* is what is called and known as a détail for spécial service. From my knowledge of the disciplme and management of thé Confederate ktSj, I can state that detuls of this description are of very ordinary occurrence. Whenever any spécial service is required, a written détail issues from the Secretary of War, or from an intermediate commander ; and Bometimes it issues in the form of the paper N which is what I call a oiroular order ; and sometimes a spécial order is issued, which is numbelred and marked. The paper N is an order for spécial service ; but as the sen^ce is not mentioned, it would corne under t h e ord e r of spé ci al or s e cre t aeg«ce»It^4bft. practioe for Confederate officers to organise and send out small expéditions on secret service, ranging from three to thirty men. i. : ^*J * À - •J I 206 within the enemy's lines." I hâve myself frequentlj done so, actuiir M Adjutanfc-General. Captain CoUins, who waa a prisoner hère m Uecember, was once sent out bj me on spécial service ; and com- mandedapartyoftwenty^hreemen. Thèse secret expéditions were always sent mto the enemy's lines ; sometimes tô capture prisoners, bum bndges, for seouting purposes, to destroy «ommnnications, and telegrapla ; and on one occaflion I sent an expédition to bum a tomi, under General Morgan's orders; there was about fifty men. Ihese expéditions were intended to harass the enemv in everv possible way. Sometime in 1862, orders.wère issued frora the Secretary ot War and Adjutant General, to form smaD parties of mea as partizan Rangers. I know a numbor of thèse men and of companies of partizan Rangers which ^9^ in opération ; thèse com- pames arenot attached to the regular artSy ; each company is under ito own officer thèse officers are seldom above the rank of Captain *rom the commission and paper N shewn me, I should consider ïoung and his party to be ft p^ty of this description on spécial ser- vice, i^arties sent mto the enemy's lines on spécial service never wear any umform. Bemg shewn and having examined the paôer writing now piroduced, and marked 0, 1 recogniae the signature thereto â the signature of said Mr. Seddon, Secretery of War. I hâve no doubt about it ; it is genuine. I know the Honortible C. C. OUy, the gentleman mentioned in paper 0. I knew him when he wm fcenatôr for Alabama in the Confederate States Senàte. I do not know what position he hèld hère last antumn. I saw him hère PAPER 0. ! Confederate States of America, War Department, Lient., — You hâve been appointed temporàrily first Hétit. in the Pro- vittonal Army for spécial service. You wiU proceed without delay by the route ahready indicated to you, and report to C. C. Clay, jun., for ordew. You wiU coUect together such Confederate 8oldi<»^ who bave escaped from the enemy, not exceeding twenty in number, that you may deem suitable for that pnrpôee, and exécute such enterçnses a? may be indioated to you. You wiU take care to organue withrn the territory of the enemy, to vidate noue of the neutrahty lawB, and obey implidtly his lastmctionB. You and your men wiU reçoive traospoitation and customarr rakiona, and clothing or c(Hmnutation therefoi'. Bec. of W*. 207 ^ aj^t two months ago. I am aware that there is a state of war existing between the Northern States and the Southern, wid has beett alnce 1861. We hâve in the South a Président, Senaté, and Hooae of Représentatives, sittmg at Richmond, and hâve a regiJarly* orgamsied government and army from t^e highest to the lowest grades. I know that in June last, Mr. James A. Seddon was Seoreta^ of War for the Richmond Gbvemment, and Mr. Davis Uie Président. I am well aoquamted with the mode in which iiie war has boen carried on by the Fédéral troops agtùnst the South. QyMtMn.- — Are you aware whether or no petty warfare and a séries of petty déprédations wero svstematically carried on by the Northern soldiers in SouiSiem temtory, in which private property. was eonstantly taken or destroyed ? ^ - Objeoted to as illégal, irreleyant, and foreign to the issues in this cause. O^ection maizMiMned. Qwiition. — Can you state any particular instances in which parties of Northern soldiers hâve entered the Southern Unes in dis- guise, and taken or destroyed private property ? ' Objected to. Objection mamtained. Questipn. — Is it not the fact, that during last summer an im- mense ext^it of Southern territory was wholly devastated by Northern troops, and private property to an immense value appro- priated by tiliem or wantonly destroyed ? Objected to. Objection maintained. I do not know Mr. Clay's Jiimdwriting. > The CouBsel of the United States object to the whole of this testimony as irrelevant and illégal, and consequentiy décline to cross-examine. (Signed) C. A. WITHERS. William H. 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. Seddon was Secretary of War for the States in June last. I am acquainted with him, and hâve seen him write and sign his name. I know his signature when I see it. Beine rixevm, and having examined the documents M, N and 0, 1 should say tbat tiie sdgtiatures to those documents are the genûine ûgoatoxes of James A. Seddon. I might be imposed upon by his signature, but I bave not the slightest dom>t that they are the genume signatores of the âaid James A. Seddon. I hâve firequentiy seen irach pspms before. The pi^r M is the usual and cûstômary form of cou ^is gjon to an oflScer ; it is the same as the one I received myself M BMadiep-Genera l. An oa th accwnpanies it, whi c bi is retumed by liie ofltedr. ïlie offioer itots imder iEé papr, ttnS reïnaiùs an ofiBéè*" QBtil the Senate rejects such appointment. I believe the Senate k * e M 1 'i i- 208 now sitting at its first session since the date of that paper. I hare seen ail the said papers before marked M, N and'O ; it was some two or three days after the St. Albans raid. The man who shewed them to me, said they came from Toronto ; thev were shown to me to see if they were genuine, and to say what should be done with them, and I directed them to be sent to Mr. Abbott, one of the Cîounsel for the prisoners, and I beliere it was done. The prisoners werp at St. Johns or in that neighborhood when the said papers were fihewn 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. Oro8»-examination 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- tarés ; it is usual for clerks to fill up the commissions. I do not know D^o had possession of those papers m Toronto, nor dç I know who sent them to Montréal. They were brought from Toronto to. Mon- tréal by a person named Hiams ; I baye only seen him once since he brought the said papers. Thèse papers were shewn to me in the Eresence of two persons, one named Moore, and the other named fcChesney. I io not know his Christian name ; he is now in Court, and was residing in Montréal at that time. I did not send for tiie papers. I was toîd by some person that they were sent for by Lieut. Young ; this was some days after the raid. I know ail the prisoners since the raid ; I knew one before, that is làeut. Young ; I met him in Canada on his way to the Confederate States last feU a year ago. In the fall or winter of 1863, I met him in Montréal ; I think he stopped at the St. Lawrence Hall or the Donegana ; I met Wm 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 presumedhe had retumed from the Confederate States. I am not certain that he went there. I met him at the Queen's Hôtel Toronto ; this was the first 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 Montréal J and further saith not, &c. W. H. CAEROLL. Montrote A. PaUen. — I am a native of Mississippi, I hâve been a Surgeon in the OonfedeVate army ; at that time was médical director of a Corps d'Armée. I knew two of theprisoners before I saw them in Montréal, — ^Mr. Swager, and Mr. Huntiey, who answers to the name of Hutchinson. iknew them in the Confederate army ; tiiey were soldiers in Mississippi. I know M r. James A. S edcfon, who was Seoretary nd signature ; his firstnameis Clément ; I beheve he was Senator for Alabama. I know that MrT Clay was in this country. I never sawhis papers, but I know that he was a Com- mwsioner of the Confederate States Ôf America. Oro88-examined under reserve.— My attention being particularly called to the figures and dates, that is to the words October 6, 1864 andbeingaskedif the paperon which thèse words are written présents' 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 rospected of being forged. I do not know where Mr. Clay was on the 6th October last. Quettion. — Whose hand-writing is the body of fhe paper writ- Amwer.—^ far as I am acquainted with Mr. Clay's letters and figures, thèse look very much like his. Queêtion. — Will you swear that the word October, or so much of it as is written on said paper, also the figure 6, and the fi.mre8 ' 1864, contained in the said paper are in the hand-writing of the Hon. C. C. Clay, Jun. ^ PAPER P. Mem. for Lient. Bennett Young, C. S. A. Your report of your doings, ùnder your instructions of 16th June taat from the Secretary of War, covering the list of twenty Con- federate soldiers who are escaped prisoners, collected and enroUed by you under those instructions, is received. ïour suggestions for a raid upon accessible towns in Vennont commendihg with St. Albans, is approved, and you are authorised and required to act m conformity with that sucirestion October 6, 1864. 6ft "• irmcEAT, JUN, î Ai Otnunissioner, 0. S. A. t f \ **&sé^te^i ^^feii^3t.,âsiif \-«, ,^^-''H.h.A^^,ii^k *• ic . »v "^ys ii ■y Anêwer. — I did not flee him%rite it, and oonsequently cannot swear thftt he wrote it. I did not see him write his name to the said document. If I wi^re aeashier in a bank in which Mr. Clay had & deppait, and a oheok waa presented to me with that signa- tare, I wouid pay it. I think tÙs is the firét time I ever saw Uie said paper. I hâve not seen Mr. Clay for two months. He waa hère either in OctoW or November last ; ,and further saith not. MONTROSE A. PALIEN. * WiJMam W. Cleary, being recalled, said : Dûring last summer, and for more than a year previous, Mr. James A. Seddon was Seoretary of War for the Contederate Gov- ernment. I was empïoyed in an officiai position at Richmond pre- vious to coming Bere. I was an employé in the Treasury Depart- ment, but the duties I performed were connected with the war office. I hâve seen sud Mr. Seddon's signature over a thousand times, and know it well. T'have seen him wrlte and sign bis name frequently. Being sbewh and having examined the papers fyled in this case marked M, N & 0, frommy knowledge of Mr. Seddon's signature, I bave no doubti^ut that ]the signatures are • genuine. Ihave seen thé* commission, the paper M before noV; 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, that Young told me he wasgômg over to St. Catherines to see Mr. Clay ; allthis took pl^ce in the latter part of July hwt or the beginning of August. I know Mr. Clay ; his name is Clément C. Clay, jun. ; he was an officer of the Confederate Government, and was appointed by the Government a commissioner abro&d, and that was his position m this countrv ; I am personally aware df this febt. The last I heard from Mr. Clay was that he was enSroute for the Confederacy. I hâve since heard of him, from Halifax. I think it was in December la3^ that he left Owiada. I know his handwrit- iug and signature very well. Being shmn and having exainmed the paper writing marked P, I believe that the whole of it, the body and signature both, are in the handwriting of said Clément C. Chjy. I bave no doubt of it at ail. His handwriting is peculiar and very characteristic, and I oould not very well mistake it. I saw that paper f*Mïsî " \ 216, WilUam Af. Cleary is r6^alled as à ' witness :— I recognize tho fleal appended to the cortificato aigriod J. P. Benjaiçin, Secrotary of State, as being.thô great |eal 6f tho Confederate States of ' Amenca. I do not remeiûber having apf^ the seal of the War Office, before. I hâve in mjr possession tho^ori^nal of the paper first annexed to- the said cerfificate, being instructions to Lieut Young to report to Messrs. Thompson and Clay, which I now pro- duce, and whiph is identified by the letter R. The reason why I did not produce this paper or the othor papers, N and 0, at an earher stage of the trial, that ia, when delay was first asked tqsend to Richmond, was that after a- consultation I had with the Counsel for thedefence, it was decided not to produce them until an oppor- tunity had been afforded for getting papers from Richmqnd, becauso it was feared that the production of those papers might involve Mr Clay in a charge of a breach of tho laws of neutrality. I cannot ^state that it is the gênerai rule of the War Office to issue more than one letter of instruction tQ. tlie same persons at the same time. I hâve known of its being dône, but it is rather the exception. It has been done jo cases when. the duty was to be performed outsido ot the Confederate lines, from whence thére might be difficulty iii communicating with the Governmenfr4n the event of any unforeseoh occurrence, so that the jntent of the sendîng of the party might not be defeated ; and the object is to enable the party sent to obtain his orders m différent ways. I know of a fact which would account for PAPER R. m Confederate States dp America, ç War Department. f Richmond, Va., June 16th^ 1864, JTo Lieut. Bennett H. Youno, liiEUT.— You hâve been appointed temporarily Ist Lieut. in the ProvisionaJ Apny for speciad service. You will proceed without delay to the British Provinces, where you wiU report to Messrs. Thompson and Clay for instructions. Yqu will,under their direction, collect together such Confederate soldiers who hâve escaped from the enemy, not exceedi;ig twenty in number, as you may deem suitable for the purpose, and will exécute • such enterpnses as may be entrusted to you. You will take caro to commit no violation of thfe local law, and to obey implicitly their mstructions. You and your men will receive from thèse gentle- men, transportation, and the customary ratiops and clothinir or commutation therefor. JAMES A: SEDDON, Sëc. W War- Va., June 16th. *;!)■« W' Bennett H. Young being referred to Mr. Claj as weli as tô Meflëre. Thompson and Clay, namely, bocause he was a particular favorite of Mr. Clay, and waa appointèd to a commission on ^is recommen- dation. I know that he waa appinted for service withjn the enemy's Hues, that is within the Northern States, l kndw that Mr. Clay recommended him fbr that commission for this purpose. , Question:— Arcr you or are you not aware that Lient. Young proceeded to Richmond in May last with.the recommendation of the Hon. Mr. Clay for his appointment to a commission in the Con- federate army, for the purpose of uudertaking raids against towns on the Northern frontier. Objected to. Objection m'aintained. Counsel for the defence déclines to cross-examine the witness. (Signed) WM. W. CLEARY. Lewis Sanders.—l know Lieut. Bennett H. Young, one of the prispners ; I know the Hon. Clément C. Clay, Jun. ; I was présent at sôveral conversations botween said Mr. Clay and saîd Lient. Ben- nett PL Young, between the 29tli of August and the 9th of Septem- ber last. I heard conversations between them about the attack on St. Albaiis, which was subsequently made on tiie 19th of October. The purport of thèse conversations was that Young was to bum the town if possible, and sack the banks. I am aware that Mr. Clav fumished Young with money to cover his expenses at the said raid. Mr. Clay sent me a choque for $400 or upwards for Mr. Youn^, towards the expenses of the said expédition. I gave him the said chèque, and he got the money on it in Montréal ; this was about two weeks before the raid. I had no personal knowledge that he got the money, but I présume he did, as there were funds there to meet it. ^^~^" Cross-éxandned under reserve of objection. The conversations above referced to between Bennett H. Young and Mr. Clay ail took place in Mr.'Clay's private résidence, in the town^of St. .Çatherines,jn Uppér Canada. This chèque that I referred to #08 drawn on the Ontario bank. I believe itcame to me m a lëtter, and-my impression is that it camp from Québec. It is my impression that the chèque was drawn on the Ontario bank hère. I was not présent when it was presented. I thînk that chèque was signed by Mr. Clay. It was signed simply «* Ô. Ci Clay, , Jr.," and the chèque was payable to the order of Bennett H. Young. I believe I saw the said Bennett H.' Young in Montréal, about three days before the raid, which' took place on the 19th of „^<^^^^^r last. L also saw the said Marcus Spurr 4a JHeatroal ^ about four days before the said raid. I did not see any of the other sud piisoners at any time near the period of thfr raid ; and y ■I; ë-^i^SJ^ /--W*^^ iftj<«55^' -v * r^ o K :'s, 218 j^è nearest time to that date Aat 1 8aw any of them wm in July SL wZ "*? i-! ""^ ^^'^^^^ *^- S^S^r «^t Windsor iî Canada West. I did not know any of the other prisoners now hère before the said raid. I recoUect meeting a bSr Tf Mt Teavis at Chfton House, before the raid in July last. (Signed) LEWIS SANDERS. \^/t^^' ^•^'^^ff^:—^ waa admitted to practice at Washîna- toa City, m the District.of Columbia. The crime of treasZi if°TÎ*^-;Vt^r* ^."1^'^ '^^ ^'^ Section of the Co^tiSn Ôf ^Z^^l f*'*'f f ^Tt^'i,' T^i«ï^ ^'^ be.found in the vXme of «le Statutes of the State of Vermont fyled in this cause. otV^^r:? * Yjf "V^"" ^^^^''^ * *°^ "t"*ted in the State theTS<î%t * '""^ ¥^ °f """^ "^""g composed of citizens of m the name of an enemy of the said United^States, plunder ban^ ^««wcr.— I should say so. - Counsel for the United States decUne to cross^xamine. <• "• J. B. F. DAVIDGE. cl^ '^^ Northern otates. Ibeyhadjlunderstood, been pnsoners ofwar. JOHN CHAS. DENT. ~~^mmmZ:iminion.^ imow Bennett H.^^ff7oneôf Se prisonert now m Court, and I first becatoe acqnâinted%ith him in '1.1 « .(. A- ,^ .? ^- 219 . / thé fall of 1863. We boarded together about three months in- Toronto. The ^d Young was at that time stndying in the Univeraitv at Toronto. He remuned in Toronto until early in' the spring, when he told me that he was going to the city of Richmond, About two months after that I saw him again in Toronto. I only Bilr him for a short time after that, for aboat a week or two. The Counsel for the defence décline to cross-examine. (Signed) WILLIAM L. WILKINSON. WUliam Donohue. — I am à Sergeant in the Water Police. I know one of the prisoners, viz: Squire Tumer Teavis. I made his aoqnamtance in the hôtel, St. Johns, Canada East, a few days before the raid. I had no conversation with him. I saw no other of the prisoners tHere before the raid. Coonsel for the defence dechne to cross-examine the witness. WILLIAM DONOHUE. " Eraitui Wjfman. — I know the prisMier Bennett H., Young ; I became acquamted with him during the fall of 1868. I under- stpod him then to be résident in TdTonto, and attending the Univer- aity there. I cannot positively say so, but to the best of my recol- lection he continued to réside there for six months after I became acquiûnted with him. I saw him late in 1863. I do not remem- ber seeing him Aère in 1864. I left Toronto in Febrùary, 1864, and came to réside hère. I met him on or about the lôth October last, on ^e train comin^ from ^oronto hère ;that is the last that I saw of him until after.his arrest. The Counsel for the defence décline to cross-examine. E. WYMAN. IfcUon Mott.—l recognizè two of the prisoners, Bennett H. Yotuig and William H. Hutchinson. Thèse two persons arrived in Company with four others on ttie evenmg, I think of the eléveijth'of October last, and put up at Léonard Hoele's hôtel, in St. Johns, C.E. Thèse persons remained for some days at the hôtel, léaving dS6]Mtftttely at diflbrènt times. The person who now answers to tbe namo of Hutchinson, and who re^tered his name as Jones,^ 1^ about five o'dock, and as I understood, by the train going to Rôose's Point ; Ûiis was on the 18th of October last. I do not know m fe^c m day on whioh the sald You ng left. They ail left scat- ^értaj^; I haih^ontefBfitJeh iHttt tEe me (JMIlîiîg'BImself Jofléff" àH itie hotel, who answers tv the name of Hutchinson ; while 86 Htliig at the said hotel, he was reoeiving newspapere from St. Albans, , ^*^ ^i^ % 220 Vermont. In the course of conversation he enquired the relatire distances of Frelighsburgh and PhUipaburgh from St. Albans . Ihe tounsel for the defence décline to cross-examme, NELSON MOTT. Henry Allan. I recogni^e Marcus Spurr, one of the priaoners • ' l^stL^Z ST^ÏÏ''!;^^ ^''^?*^ ^^^ ^*«'' ^ *^« lutter par of January, 1864. He had no business that I know of ; he waa there for two or three months after that. I saw him hère în Montréal lastOctober, before the raid at St. Albans; he wM fltaying at the St. Wence Hall. I saw him m Montréal two " three days before the raid at St. Albans. . ' rhe Counsel for the defence decUne to cross-examine. HENRY ALLAN. Jame$ L. Sogle.~l formerly resided at St. Johns, Canada Ea8t;IkeptanlioteltheKeinthemonth ofOctoberlaat. Irecognixe wm^o^Pï?TJ? "^'^ iû Court, viz: Bennett H. Young and They arnved with four others, and ail put up at my hôtel. They arnved on the Hth day of Oçtqber last, and registered their namS m the register which I there kept, and which f now hâve in Court. Ihe pnsoner Hutchinson registered his name as Jones, I think J â:^,!?^' rîf ®^ *"^''®^ /'' * ^^y^ *^^ t^ee of them left on the Sahirday of the same week as I left home. I canûôfr say (when the tlî'^l fe**; v^P^^^*^¥°§ ** *« '^^^'^ thé ent^so made ^nî ^ Hutchinson is W. P. Jones, Troy, N. Y ' The Counsel for the defence décime to cross-examine. I J. L. HobLE. Thursday, Feb. 16, IsljS. fl.i«r* ft""^ ^'^ ^^ prosecution expeoted more witnespes, but thèse not bçmg présent, lie argued that the prosecution Uà fuUy of oneBrec^; and that he apprehended aU the prisone^were r^ A V ^ e^dence showed aU were in towii on that lay, «s ST^ J^'**fT'*!.*"^x*^'' *^^ robbeiylefl the toX'^Ud l5f« ^f*r ' n*° ^'^' % *^*» proceede'd to quote Hawkin's Sr t î.\^~^' J^P- »4, sec. 4, p. 148 ; kale, vol^ 1, p. 684 ; Ist Bishop, «ec. 267 ; also 2nd Bishop, for robbei^, qioting uw .cuuMis^irHB uiiiuujuuou 01 plonder. They ail came thelé fi»!- the purpow of plundering (he banks; and as gn incident Ko 221 ptonder of one of them, they had also plundered the complainant ; and they ail * left there together. As they had assèmbled there nith intent to commit one felony, ihdj were ail alike guilty, if Any of the party, so assèmbled, had committed another in the^oun^ of the proaecja^on of the one which they intended t» commit. He citea, as an illustration of the doctrine, {m instance in which parties were prosecuted for a breach of the peace with intent to resist t^e police, in Which the Court held ail equally«guilty of the murder of a person aiccidentally killed, though some of the party tvere distant and even out of view. With thèse authorities, he submitted the prosecution Were entitled to a warrant of commitment for extra- dition against the prisoners. They (the prosecution) intended to await the arguments of their leamed friendà on Monday ; and if, in replv, the IproSecution quoted any authorities, it would be the pfivilege of the defence to answer them. It would also be the priiàlege of the Crown prosecutor to sum up the whole case after- wards. Bon. Mr. \ Abbott said it was to be regretted that the prosecution had not told them the grounds they intended' to take; Mr. Bethune said that the ground would be thfit the prisoners haid committed robbery. Bon. Mr. [Abbott continued that the disadvantltge would be, that they would hâve to argue and fortify every point of law and of fact, not knowing W^hat was disputed or what denied bv the prosecution.. This would grèatly lengthen the arguments for the defence which might oth^wise nave been confined to the real points in issue! The case of th^ pros^tion would only be dereloped in their reply, and this again Would be unjust U> the prisoners. Ms Bonor sud that if necessary he would hear the counsel for the defence agatn. ' Mr. Bethune idid not care how often they spoke. . The case U> be maintûned W^as one of robbery. ' Mr. Johmon ^ûd t^ere was no particolar form of procédure in such cases. Bon. Mr. Ai^tt said that Mr. Bethune had propo^d that Mr. Johnson should stim un, but he denied that the Crown prosecutor had any such rigat. "The real prosecutor was the United States, and •fter< they wore heard, the Qase bught to be left to his Honor. Mr. Johmon said that with respect to tiie office of Crown prose- cutor, that might ï|e safely left to him. Bù Bonor thoukht that the Crown officer was entitled to reply. Tbe case wm a Crown case, m so far as it was the dufy of tib» »d^ a nything wroDg ; JmLihat-wha t eyer-Mr^ Abbott had to say l^e would hear him. The enqoiry was Ithen adjonmed tiU Monday at 10.30.' y II '" ÏSi, ,.'i^A;"?i),:-\i>-i4i i' .v.i 1 2 0.. . 2a-W endeïl^ pr^^ 18. Hiat &yi<)|»ti6n of neataJ ri^tf, either bj-oi^ptore in 119a- t ^ Il ' ' 1 i' •ïm I i; '^î 1 1 .- , f.jt^ -viè, ,j| 224 m. h< ' . ■■■' ' tral temtory of enemy'a property, or bj thé useof neuti-al terfitory for the passage of troops or as the starting point of an expédition agaînst the enemy's country , doea not deprive the troops so viblatinâ neutrality of their belligerent character. The beliigêreiit whosfe propetty bas been captured has no rights in ihe matter, and àuoad him, captures so effected are légal. Such violation of neutrality cannot affe<ît in any way the non-responsibility of belligerent*- troops to the ordinary tribunals, for hostile acts.— Historicus d 52, 153, 154, 155, 158, 159, 162. 1 Kent. p. 119. (Jrotiuslib III., cap. 4, §8. .Bynkershoek b. 1. cap. 8. 2. Ortolan, p! 256 The Anne, 3 Wheat. Rep. 485 per Story C. J. The Etrusco 8 Rdb. 162. Brig Alerta vs. Blas Momet. 8. Peters Rep. 425 La Amistad de Rues, 6 Wheat. Rep. 389, per Story. meaton p. 722. Judge Tallmadge on McLeod casé, 26 Wendell, dd..663 to699. ■ ' 't-f ""*> 14. That a neutral goveriiment cannot take cognizance of or • pronounce a judgment upon, any act of hostility committed'by troops under the command of an officer commissioned by one belli- gerent, within the territoryof.ihtfother belligerent. — Lawrence's Wheaton, pp. 40, 42 in notis. Bynkershoek, pp. 115, 116 in notis 119, in notis, Notià. 26 Wendell, p. 688 & 9. Vattel' 3 lib. 7, cap. § 103, 110. Halleck, p. 73. -8 PhUlimore, 201* 202. 2 Burlamaqùi, pp. 198, 203, Lee on Cw)ture8, pp: 109 138. 2 Rutherforth, 650, 561, 662, 658. 2 AÎni, p. §4. 16. That iî, a neutral nation, on the demand of one bel- ligerent, deUxers up to that belligerent soldiez and officers of the other belligerent, who hâve commit^ acts of hostility in the country of the belligerent demanding such extradition, on the^ grouna that such acts Were crimes, Such pretended neutral nation thereby violâtes its neutrality and espouseS the side of the bellige- rent to whom extradition is made. — 2 Burlamaqùi, p. 193. 2 Rutherforth, pp. 652, 663. Halleck, p. 629. Byiikershoek pp. 69, 118 in notiêi ' ft" Î6. That as a civil war existed between tàne Fédéral States and the Confederates States on the 19th October làst ; Her Majesty had proclaimed Her neutrality in the war ; and Bennett H. Touing was tiien a commissioned ofiicer in command of a detach- méntof Conféderate troops, operating under orden from his Govern- ment withm the territory of the Fédéral States, the act of Bepnett H. Young ma his command cannot be-measnred by the provisions ôf the mumcipal criminal code of the enemies of his^knntiy ; nor can our Courts or o£Scia|s hold his ÇMsts to be crimerwithin thé purvieu of the Aflhbarton treatv.— U. 8. v. Palmer. 4 Wheaton, p. 62 J17^ -g3i»t the Ms emM a ge of Cit tt eB ft^flf^ t h e Un ite d - gtateBrfty-^ the purpoee, on behalf of the Conféderate States, of sacking and * ^i- 226 Constitution, p. 42, 44. U. S. v. Burr. do. pn 61 62 fift «T 66, 69, 70, 73i 91, 82. ^^ ' ' ^^' ^^' i^r. ^m- mid r—To me bas been confided by my leamed frienda Aédu " r" The question^ extradition of^oriminalt by the^ authorities of the country within the limita of which they had souijht \ I ! tii ^"..1' • m ^AAj^M.if^S V* v<..«4r. ' -HM-t Jff f àAi- ■*t|*»'^^«' 22Ô refuge, to the, authonties of the country wîthîti whoae terri- toriôs they had committed a crime, was one which fonnerlv occu- piod the attention of Bta,te8men and publicistB throughout the ciri-v liaed world. Like every other important principle of what may* be called mtemational expediency, the existence of the r^ght to d^gaand was by some authors denied, by others admitted. The question however was shrjouded in obscurity, and the greater num- ber of the nations of the world hâve pronounced against the exis- tence of any such right, by entering mto treaties by which they » a^eed under certain conditions, to deliver up persons to the autho- rities of the other parties to the treaty, accused of havmg com- mitted crimes within their jurisdiction. It is unnecessary hère to enter into a détail of the treagga^entM^d into between différent States wherein an extradition stipulation appeared ; it is sufficient to say that Great Britain has,. at différent periods, entered into two on that subject with the United States. The provisions of the first made, m 1794, and ,known in American works as the Jay Treaty, was in its extradition clause almost precisely similay to the tenth clause of the Ashburton Treaty ; m fact no différence of any moment was apparent, save the promise to vest jurisdic- tion in the judges and inagisti-ates. It was limited in its opéra- tion to twelve ^ears, and expired without any great use having been made of its provisions. The only came célèbre ariâing under it was that of Nash alias Robbins, to which référence 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 stipukted and agreed, that on demand the high contracting parties should deliver up to justice, ail persons who bemg charged with the crime of mur- der, or assault with intent to commit murder, or piracy, or arson, or robbery, &c., &c., ahould seek an asylum, ôr be -found within the territories of tiie other, provided that this should only be done upon such évidence of criïbinality, as according to the laws of the place where the fu^tive or person so charged should be found, would justify his appréhension and committid for trial, if the crime oroffence had been there committed ; and it was further provided, that the évidence of criminality should be heard and cons^ered by the Judge or ma^trate issuing the warrant, and that if on such hQanng, the évidence shpuld be deemed sufficient to sustain the .charge, then thè justice waa so to certify to the proper executive authority, m ord«r that a warrant of extradition mignt issue. It has been ruied in this case that the proceedings were rightly institutedu nder the Provincial Act 24 ViC yCa p. 6 ; rt becomee thfliL„ my duty t» ençiun what àré the power» of the officiais mentii^ed in that Act, with référence to the examination of the suffidenoy of 9# 227 the fivideiice to Bustam the charge. In order so to do, it becomes neeÔBsary to examine ihe powers and duties of our Justices of the Pe^é ont of sessions, in their examiiïations mto charges of indîotable offences against persons brought before them. By the 80th clause of 192^cap. Con. Stat. of Canada, it îa provided that in aU such cases the justace or justices shaU,in the présence of the accuséd person, take tiie statement on oath or affirmation of those who know the fects and circumstances of the case. By the fifty-seventh article it is provided, that if id the opinion qf the juëtice the évi- dence is sufficient to put the party upon bis trial for an indictable offencej although it may not raise such a strong presumplaon of gmlt as would induce such justice or justices to commit him for tnal mthout bail, then mch justice shaU admit the party to baU • the déduction, therefore, from the évidence the justice bas received from those who know the facts and circumstances bf the case, in order to justify hia,committal for trial, must be one raismg a stronc presumpùon of guilt against the accused. Oan it be pretended that the justice having three alternatives to choose from, ail founded on the comparative strength of the évidence j^ainst the prisoner viz., either to discharge him absolutely, to bind him over, or to' commit him for trial, that that discrétion does not in fact give him power to examine and weigh the évidence, in order to discover to which course the charàcter of that évidence forces him ? If from toe nature of the évidence adduced, which in itself is incontroverti- ble, it is apparent that to commit him, or even to bind him over would expose the country solely tô the costs of a trial, which must resuit m the acquittai of the prisoner, the duty of the justice is clewrly to discharge. If, on the other hand, no évidence bas been rendered changing a prima fade case of felony, it is the duty of the justice to commit. Can it be pretended that a man who bas acted as pnJ)lic executioner at the exécution of a criminal condemned by a compétent court to death, would not, were he apprehended for miilrder, be aUowed before the magistrate holding thé preUminary examination, to produce the record of conviction and the document provtng his own status as executioner ; and would it be pretended that the magistrate had no right to examine into such évidence, 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 the / pnsoner? Numberless other cases may be cited in which the/ °!î^® *j7<>«a*ed by the prosijpution is shown in aU its true ab' surdify. This, let it be remembered, applies solely to cases arisina imd« our municipal law, where the injustice is suffered by one 4f JwMip^t^tB^ and where his^comœittal' J»^ teial, evea fer offenoe of which he is not guiltv, can only, at the most, entail upon him the temporary inconvenienc^ of imprisonmentinone of our gaols ; X\ -•i:H; ■' mi ,-^ÂJ).i. m^'i i^' i ■' **■. •ff^Jg^pSi* ■'*'* . ■> ' W iit^i^ «■ w Vf 280 the captain of the Joseph G errity, of the déclaration to him by one of thé passencers that he waa to consider himself a Con- federate prisoner. No commias^na, no instructions, from -that belligerent govemmet^ were produce^, nor waa it proved, that they were natives wrâubjects of the Oonfederate States; in fact ,the presumption waa that they were British subjects. And yet the Chief Justice, who, it must be remarked, differed from the majority of the Court with respect to the first point, on which they were dis- charged, observed with référence to the second, that " I concur that persons although not subjects of a belligerent, and although violating the laws of their own country by theu- interférence ia, its behalf, are not therefore ohargeable with piracy. But, at the same time, they cannot proteot themselvea fix)m the conséquences of piratical acta by aseuming the character of belligerenta. The pri- aoners averred that th<^ were acting on behalf of the Confederate ^ Government, and Mr. James ia right in arguing that this is the same aa though they haft hoisted the Confederate flag ; but we also know that the flag of a country is frequently hoisted by pirates for the better carrying out of their schemes, and tve mist look at ail the circumatancea to see whether or no the ohject of the prisoners wa» a piratical one. . I cannot say that, that waa so cléarly nega- tived aa to ouat the justice of jurisdiction to commit the prisoners." We bave hère, the opinion of the Chief Justice of England, saying that the judges on habeaë corpus are bound to look at ail the cb- cumatances in order to cMne tb a proper judgment on the nature of the act. He, moreover,^admit8 that the déclaration of the priaon- era that they were acting on behalf of the Confederate Government, ^egativea, to a certain extent, the preaumption that they were ates ; but he cannot say that that déclaration without 'proof of omission or inatructiona from the Confederate Government, so clearly ne^tived the presumption of piracy aa to ouat the justice of hia jurisdiction to commit; but bis opinion maintaina most strongly the principle that & prima f acte case against a pàrty may, be 80 destroyed by évidence of belligerency as to oust the justice of hia jurisdiction, thereby giving to the juatjce the judicial power of appreciating and weighing the teatimony. Mr. Justice Black- bum in the same caae niakea use of the foUowing remarka " there was évidence ot yixeuoyjure gentium and also évidence that the act waa a belligerent one in fnrtherance of the cauae of the Confede- rstes, who are belligerenta and ao recognized. The act then, ao far as the évidence goes, waa either pxMjJure gentiim, in which caae we are not empowered to ^ve them up, or it waa the act of belli- gereptfl. and t h erefore triable neither Jiaïae nor fl l oft ^T^m/' It mût be adioitted that there really was very str^'-wôijençerf pBnoy,and very weak évidence of belligerency in the casem que^ %s % .V. 281 tion, tixe onl^ fact to show the latter oharaoter beiag furniBhe<]l by the déclaration of the prisonera, which the Ghief Juatio9 likeneci to fhe hoisting of a flag. In the case of a vessel attackine aind cap- toring a French merchantman, such vessel would not oe relieved from the imputation and conBequeAces of being a pirate by showing that at the commencement of the ^ttoek she hoiâted a Mezican flag, if she did not produce either heWommission as a man-of-war in the Méxican navv, or letters of marque authorijdng her to enlise as a privateer. Air. Justice Blackburn very justly remarks also, that if it were the acts of belligerents, it was triable neither in Ëngland nor elsewhere, therél^y 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 att^ition is that of the Roanoke, which was taken possession of on the high seas, by a pariy of' Confederates under the coifamand of an officer, who had t&ken passage in hèr from a neutral prt. They were arrested at one of the West India Islands on a cnarge of piracy. Ât the pre- liminary exammation before the ipagistrate, after évidence of the act of pretended pirac^i had been gone into, the officer in'command prodncëd his commission and instructions, and thereupon the Attor- ney-General for Her Migetty abandoned the prosecutien and thêy were discharged. In iÉe natural order of things we now come to the case which without doubt is the ch&tal âe hataille of my friends on the other side, the one oontaining accorcOng to their ideas the conceç- trated prinoiples of law applicable to the facts of the St. Albans raid, and one so perfectiy analogous that it absolutely puts an end to ail our pretensMMis. I mean the Burley case. The opinions pronounced b^ the iTpper Canadian Chief Justices and Judges hâve been sub- mitted to ue décision of the civilized world, and hâve become a por- tion of the property of the nations of the earth. Those opimons, therefore, are now open to critical examination, aad anv one wish- ing to satisfy himself , upon the responsibility incnrred by belliger- ents in visiting neiitral countries, would be forced into investigating the correctness of the principles therein laid down as regulating tàe ooune to be adopted m ail cases, wherein extradition should be demanda. The questions naturally arising in that case were of ?a8t importUQce, atteoting not only we prisonerr^but m their consé- quences touohing the question of peace or war between Great Bn- tiun and the United Sixtes. The law of the Pirovince of Canada was not the only syàtem of jurisprudence involved, ]^ut tiie International law of tiie globe presented itself for discusàon. The rights of bellige>- rents, thé duties of neutrals, the soverwign powen of govemments considération and settiement. For the nonce <èen the judiciary of Upper (knada lost their oharaoter of Colonial judges and oocuiâed ■» î te crédit of ha^g dwBipatedthe many erroneous théories advanced by publiciataw fommg part of the law of nations. To them aJso is due tffpS Tî to ZTZ "^^'t ^^ ««^« ^î*^° tï^«ir ken?^'the whether the récent judgment on^e appKcation foc Habeaa .CoZas m^Burley's ca^e is based upoiTthe principles of law ap&Se thereto or whether either through igno^nce or aijaae subEce to popular opimon or to Govermnental pressure, the judTe» of ofUpper Canada.have sjiown themselves unworthy of thi Son S7r.SPf' ^ ï\*^!^ °^*'' occasion examine^ withdrSSî Je pnnciiJeswhich bythose judgesare declàred a« goveming S fied by the fects^proved, and whether the principles invoked byX ™S«1 r ""J"^^^ ^l erroneously applied. oSe first propofita^ made m the orderis that the question of the actbeing a B^ZZ act w one solely for Ihe considération oFa jury in the uîitod K Th^irL""^ if "f r"*' "" "°* authorized thereby to wage aU acte of hortihty on the lakes or sea against the propeity and wrsonflrf ZélZtai-fVT^^r déviâtes, in his discrétion fiSm the fluwLS^ffl ^'^ A^""' ^ «^'**"<'® ^^ instruction, the subordmate officers and men under his command by obeying o^ew r^.LÏS'^'-*^-*^?^^'^ ^'^ *'^«™«*«' Of belUgerente^^annr" responsible cnnunaUy for any aoto they may comiit which in tSe &3;r''^? 'i-r*"*" °'^«*" The'^four&is thati WoliSon of Caij^neutaihty aggravâtes crime committed in the jurisdicS,» of the Umted States. The fifth is that a judae in a muSS couniy haa a right to inqui,« into any deîiS by the ISÎ ^rfnf?^*'""* •ï^''*" ^"'? commissioned in wai^, dm HxepZ pwt of his commiMion, on tLe demand of the other belligerentiad ^St'3^- «/"Sr «if \f?,<ïo^«ti»g he committX^îffCce J^nst the laws of (he other beUigerent, and order him to be oon- •uch prodeediniES bv the ludm ar» «a* ;« »;^i„*: x-ti— »^-7' rT* —7 r--r~*-'~»j "w cAuwjuuoQ lo nis enem^ ■och prodeedi n» hy the judy> are not in vjoIr' referto some of those cames célMn„MUok la^re mdttïd the eA^>j>tteiKt'.kiiaËiàAihi.i'. „'âfeMlttâ&»^%i i .>'' ^' r>^.* 288 Upper Canadian Bench and Bar so famons throughout the Vorld, Heaven koows that we poor Lower Canadians hâve no preténsion to cope with them in any field of either industry or talent. WeVare, ■mih ail due self-abasement be it epoken, an inferior race fittei hj nature for the barren, bleak, misérable country we inhabit. Content to live and die as our fathers did before us, we exist without ahy of that noble fire wich occaâionally leada men to dodeeds refleci' honor on their native land. We plod on in the weary round of liticB and law most congenial to our tempéraments ; we cling to âïe\ Coutume de Paris ; we révérence Blackstone ; we dislike novelty, and we abhor new fangled ideas of jurisprudence. We hâve been ri(U- culed and laughed at for our stolidity. We hâve been abused for our ignorance. We hâve been told that the Bench^of Upper Canada ifl composed of men renowned, alike for their talent, learmng and integrity. We hâve 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 with research, and leamiog,utJteredby the ministers of justice in that favored por- tion of God's earth. — We hâve been recommended, in lieu of studîy- iny the speeches of Erskine, Curran, Burke, or Plunkett, to open ourears to the ravishing melody of the utterances of Upper Cana- dian counsel, and from the models of éloquence and slyle by tiiem set before us, to form our ideas of the persuasiveness and poweaa of Demosthenes and Cicero. We had fondly fancied that had the Upper CanacUan %nch but the opportunity, the exceeding talent and leaming of its members would hâve been so displayed before the eyes of the whole world, that scientific men throughout Europe and America would hâve hiùled them as M^rthy recruits to the sélect band of international jurists whose writi^s hâve shed light on the darkest pages of the law of nations. We in this Lower Province, would hâve humbly rejoiced at the glory thus reflected on dur native land by its distinguished citizens, and the cosmopo- ■ litaà réputation of Canadians would hâve kmdled a blaze of en- thusiasm in our fHgid bosoms. But alas, how bas the reality deoeived '\Ï8 ' On two différent occasions the Upper Cai^adum Bench bas h^.tried, and on both found wanting. The case of Andersen, the negro apprehended for slaying a mad in Missouri, who endeavored k> arrest Um whilst making his esoape from slaveiy, was the first whidi shoôk our confidence. There the Court of Queen's Benoh laid -down tiie monstrous doctrine that Âey «ould not take into considération the other faots depriving his aot of the onm in al comple i ion, bu t were bound by Aie mère faot of hia ^awfef^^wTâ num, to ^omiirtim for ettiiâîficm. ' A trial inlT ahMreholdini^ country being « necessary oonsequraee, and Ander- «m'i exeoutioa being the ouy coiiolusiim they naturally coold expeot .-'-> * ?ï*i.j Y ^ ^ ^u^,^ iiiiiir I illlh- ' iw as Juris- icaged 284' from that action. Not content ^th Aus pérverting the applicable to the negro's act, they ayrogated to thernselves diction to which they had no rieht, andcommitted the i upontheirown warrant for extradition. Public opinion in jLsmuu roused bv this frightftd injustice, pronounced itself so sfaJSy agamst the judgment and action of the Upper Canadian (foiS^ thata writ of Habeaa Corpus was issued from the Queen's iench m Bngland, to brmg Andersen, and the commitment under fhich he was then held, to England before a tribunal competekt to appreciate and understand the principles of law appUcabTe to the facts. Struck with dismày at the issue of the Eriglish *mt, the TJpper Caïadian Jtidges resolved to burkeall such inlesti- / ^taons, and from the Court of Common Pleas issued a wMt of i Habeas Corpus under which the commitment of the Court of Q Jeen's Bench was quashed ^ havmg been made without jurisdictioJ and Anderson was thereupon discharged. Such were the facts ank cir- cumstances of the first» case in which Upi^r Canadian Judgdb had an opportumty of showing their acquaintance with the princiiïles of ^temabonal law. It must be admitted that it was a misérable hnale to the grand display of leaming and argument exhibiled by tbeCourt of Queen's Bench, when they declared that it w^ their duty tojîommit him for extrjidition under a warrant which.Ilearly they had no right to issue, to be obhged to caU m their breèren of the Common Pleas to free them from the embarrassing position in wluch they then were, thanks to their own ignorance ; but Upper ^ Canadian creduKty is quite equal to Upper Canadian vanity, and the pubhc of that portion of the Provmce were stUl more deeply persuaded of the intellectual faculties and leaming of their judges bythe exceodmgly Sharp and skilful manner m which they had managed to élude the action of the English Courts in the nmtter. But to retum to Burley's case, the Upper Canadian Bench taking no heed to the outburst of indignation in Enghmd, and in faôt throughout the civilized world at their ruling in the Anderson case above referred to, agam in this case advanced the doctrine that the judge or magistrate in Extradition cases could not consider any évidence which might be given before him tending to destroy the ^mouaness of the offence charged. They, m fact, decided that It by any testimony it is proved in any Extradition case where ae change is murder, that a man bas been killed, that it is nb part rf the duty of the judçe or magistrate to iàquire into any other of r®^'^"°w*«ice8 tending to show either that it is mandaughter or nutijable homicide, those are questions according to their doctrine Jff ™g .oooMde r at ion of a ju i y o f t h e State whereia -th»^ aet^ wa» - !T™ïPa. ?7 » P«ri*7 of wiêoning, if arëbellion wen to br^ ont m the Staite of New York, and men were kiUed by the rebels, Èi^^dtia,:, 18$ who ghoiild afterwardè aeek refuge in Canada and be demanded bj the United States ^thorities, our judge or magistrate shoold (Knmoit for Extraditi<>b on the ^und of murder, havîng been com- mitted, leaving to th^ juiy'of United States ciiâzens, the right of deeiding whetber thé: crime reaUy was murder or treason ; thereby,. in fkot deolaring thalt the Extradition treaty bas, done away with flie right *of asylum for political refugees in Canada. They bave forgotten that this 'committal for Extradition is, so far as this country is conceméd, a final judgment ; and surely if we do not, wish to be looked upon as the most pusîllanimous cowardly race upon the face c^ the earth, some stand must be made against this departore ^^dicial authority from the traditional policy of the empire.^^FM^xpte Bollman et al., Marshall on the Constitution (on p. MM|l),^e People v. Martm^et al., 7 N. Y. L. Observer (Ç- ^«Hp 4 Opinions Atty.-Gen. p. 202. The other pomts laid dflW^ylhe jud^ea will bè coneidered as they présent them- selves in the order of my argujiaent. Abandoning for the moment '.jjhe gênerai principles of Ex- tradition, and the cases cited, I pVoceed to address myself to the facts of this case. On the 19tli 'af.October last the town of St. Albans, in the State of Vermonï; one of the so-called- United States of America, was thrown into consternation by the appearance of a body of twenty-one armed men whose leader declared that hewas a Confederate oflScer dispatched by his go^^m- ment to take the towii. ^Parties of men were dispatched to différent banks where, in each instance, after declaring that they were^ Confederate troops sent to retaliate for the outrages committed by Sherman and Sheridan, United States ofl5cers,in the territoriesof the Conffederate States, they forced the officers of those banks to deliver up to them divers valuable securities of the United States, worth about half their nominal value, and bXL the bank notes in the institutions at the time. /l wish to draw your Honor's atten- tion at this stage, to the fact/that bank notes and securities for the payment of money arc, lùider the déclaration of the GovemHient of the United State(B,jBontraband of war, and liablo to be takën from a neutral ve^Bel unolrthe same circumstancesas would justify the forfeiture of munij^ns of war. Whilst in the. bank thèse scènes irere goin)g on. anclher pwty hàd been detaohed to secure horses and eqnipinems fat the raiders. A snflBoient nnmber was procured to^mount them ftll. In the interval a numberof United States oitiiiens had beén taken prisoners, and were conveyed to and kept xmder gnM^}in a pi^lio gg^oare. Dnring ti>e time a party of the Ï: \ niders^erUn pÔMeMi'^ 'liHîiH \ i .11 I Ijl 286 ^ , . i . m brought With him was taken from him by one of the Wo raidera mounted, and the townspeople vho had armed themselxea A^ttempt to fire tie town wm frustrated, and the raiden being formed in mihtary airay retu^d from the>vn pureued by some of the43iti2ens,whofireduponthemintheiri»treat. A pirauit wtt prganized, but the whole partj of Confederates succeeded in orSh mg the bno to Canada where, without warranta or Bwom informa- » ùons havong been laid, thirteen of them were arrested by the ^untry mag^tratea and constables. So soon aa the news reiohed Montréal and Québec, Judge Ooursol was despatched to the fron. taer to conduct the proceedings, and was ordered, by the AttomeV Oeneral, to arrest the^ offenders without waiting to Lke ont S mataons ox to draw Warrants. It is unnecesâry for me hère to ?olT/"^^' ^***^^ ^^ *^' proeeedings had before Mr. Justice Coursol, for they are now matter of histoiy. The facte of the raid ?nf ?f°p ^^>.T'*®"^ before your Honor. The commis, «on of Bennett H. Young in ihe ànfederate army, iJS mstructions to form- a corps of tweniy Confederate soldiez, eseaped pnsoners ofwar ; his instructions to report for orders to Me^ Thompson tnd Clay, and his instruetion» to report to Mr. ^y alone for orders, are fullv and satisfactorily proV^d in this case The actual order to maie the raid, signe* by Mr. Cky, has been produced ^and proved ; and the muster rolls of the dâferent ^"rhH''^"^*^'i'^'f '^ l'^^^'^S'^ ^« Confederate service are al» b^ore the Court authenticated by the proper authorities. the 19th of October hist Bennett H. Young was an officer in a^«« contending. It is necesJaiy hère S/r ' r"* "V^" *•** **^ ^'"^ importance, with référence to ^ly existence of the treaty, under the proViwons of which the exbjdiùon of the pnsoners is^demanded. *Since the date of the tteafy, five or sut- Sbrtes hâve been admitted into the BepubKc, at th»t tmie compoeed of a number of sovereign States recoiûMd by œ Tu .*! * ePl^ramnt under the name of the tJnitedsSles. Kopttbhc at thaï âme Mve aecpded therefiTïidWS W .«elves mto a separsto repubUo, under the mune of the Confederate .y> jeot of war, takmg it for granted that thoeè nations hare a right to "^ « '«^ «o' , < : r v^"-^.-'""i-\i(«'!a?trfiïi.''''s'î'is'"''' . ' - • % 2^8 ., ■' ' i' '.'"'r- S ^ctate to the re||iÂf the worid the proper course of conduct to be piirsaed bj^ belfigerentu, forgetting that ail nations are equal, and that no nation is bouiffl to sùbmit to the diotation of another. Thev baye also taken conventions contained in treaties as declaratoiy of cxÎBtijig law, whilst.really treaties must be looke4 upon as means for obtaining the récognition of principles exoeptional to the gênerai rule. But few of tiie writers of this cent»gr, if any, hâve shed any lighi; i}pon that law, and in order to obtam a fidthful^nsight into ifs principles, boldty, perhaps coarsely portrayed, we must refer to lie publiciste of the last two centuries. Of course in* so spealdng I make no référence whatever tp. the "cases decided in the Engj^ Admiralty and in the United lâtàtes Suprême Court, which are ail of the highest authority and are moreover founded on and sustained, by, the writings of the authors, who flourished in the seventeenth and •ejghteenth centuries. I hâve now arrived in thj* case at that particular pomt where it becomes neifessary to consider the ri^ts of belli- gerents. Wars of old were divided by the commentators mto perfect and imperfect ; the perfect war is also called public or sox lemn, and is where one whole nation is at war with another whole nation ; an imperfect war is one limited to place», persons and things. A civU war, when it bas attained sufficient magnitude to induce foreign nations to déclare their neutrality, is a perfect war. In such perfect war both parties are belligerents, and entitled to ail belligerent rights given by war to sovereign govemments. It is perfectiy clear that so soon as war breaks out between sovereign Go- vemments, the municipal criminal codes of the belligerents ar« mlent and inoperative quoad acts committed by the troops of eitiier 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 le^. Under thé law of mitions that law is superior to any municipal code. A perfect war ^ves the right-to the membeis of one belligerent nation to kill, spoil and plund^er 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 otiier violence, are quoad members of the other belligerent nation paralyzed by the supeiior authority of the law of nations during war. IJUer arma tilent lefffs. AU offences committed by members of oné belligerent nation upon the members of the other on tibatothors soil, — arewithin the jurisdiction ofmilitary tribunals solely, and are gauaed by the laws of war. That this doctrine is recogniied m the" United States caimot be denied. The I^ »gidftnt'iajtrnnlA«i«à- ^âmoim SQïBeptembèr, by wHcH Oie ïwwer ofŒêjuaioiî^ was abrogated in cases affecting individoal liberiy and tiie establish- 2»9 , ment as matter of faot of martial law throughout the limits of the former United States, as well the loyal as the rebel, shows conclu- sively the correctness of the position by me taken. K further "proof he wanting, take the case of Beal, uiq leader of the Lake Erie expédition, for prticlpation in whioh Buriey was extradited as a roSber, and gather from the proceedings and sentence ofthe court- martial held on him ànd its approval by Gen. Dix, whether the Upper Canadian judges were justified ^ believing thathe would hâve a fair trial before a jury. It has been held by some authors of late years, thftt only the regularly commissioned officers and enrolled troops of one belligerent are authorized to enter into hos- ^lilities agamst th© other belligerent. Without admittmg thàt pro- position, Btill as this case présents the prisoners in^hose capacities, I am, for the sake of argument, wilhng to àdopt it àa the rule. Nations are sovereignî If the Government of one belligerent chooses to despatch a body of its troops into the territoïy of the other belligerent, with instructions to devastate and lay waste that territory, and those troops do so devastate, plunder and lay waste ihat territory,. and commit any other hostile act therein not mentioned in their instructions, the other belligerent has no right to say to them, if captured, yôu are but maraliders, for you bave exceeded yoùr mstructiona. " The mère production of the commission of the officer commandmg such force is proof of authority 1;o him, by the Government of his countiy, to wage ail acts of hostility against the subjects of the ottier belligerent permissible under the law of nations. He then is in the position of a recognized agent of his Goverment, and his acte are not individual» but national, for which his Government aloûe is responsible. Should he exceed his in- staiictions, he is responsible to his own nation solely and exclu- sively for such excesses. If he deviate therefrom, so long as he does not commit any act contrary to the gênerai rules of war, he cannot be called to account for it by the other belligerent, or by any nation on the face ofthe earth< An act of hosi^ty tiien committed by the officer of a belligerent commissioned in war, on the" soil of the other belligerent is an act of the nation by which he is commissioned, for whibh no individual responsiWlity is mcurred. That this is the case isiproved so dearly an4 deoidodly by Âe joint admissions of fhe British and American Government in tiie McLeod case, that the opposite pretension is hardly worth ai^juing against. During the rébellion in Canada of 1887, ike American steamer Caroline was raiàe use of by the rebels and American svmpathisers tocany supplie» to Hke rivaj forces on Navy Island. The vessel usually lay 4uring ^ nighfr ftt tofrii^Bid^ittid^a exp e ditiDn iras or g auiwc t^ under théi oommand of Captam Drew, R. N., to eût her ont fi«m her mooriligB ; but on its arrivai at Navy Island, it was dkwovered 1h, il :/, L É t' if fc: 240 ^ ■^ . tjiat the Caroline had been removed to the American aide of the river, and was then lying at a place called Schlosser, in the State of New York ; the expédition, however, prooeeded, attacked ihe boat, carried her by Doarding, and in the skirmish a man of thô name of Durfee was killed on the soil of the Stàte of New York. The Caroline was then towed out into the xapids, set on fire, and sent over the Niagara Falls. A person of the name of McLeod , vimting in 1840, Manchester, ii the State of New York, was ar- rested for murder on the charge of being one of the party oonoemed in the cutting out of the Carolme and killmg of Durfee. I was at Manchester at the time, and remember perfeetlj that the only person who exclaimëd against the arrest was a gentle- man from the Southern States, In the diplomatie corio- spondence which en^ued, it was clearly admitted by both the American and British Govemments, that troops actinrm, the fiilse flag, are allol^able. Those who trust iSemselves to such deyioes mày in the two latter cases be treated as spies, if captured in the at- tempt to deoeive, or ère their departure &om the eneniy'a country ; but once be^ond the boundaries, .tiie enemy is not justified by tiie lawB of war, if afterwai^ taken prisoners (8 Phillimore, p, 141), in tréating them otherwise than as prisoners of wàr. No otiier power then, having tiie li^^t to enquire into tàxe &Qt whether or na snch commissionj^ officer has exceeded his instructions, the Go- vemïnpnt niiich commissioned him is the only one entitled to find ^fiwlt with or ponish him for aay excess o r deretiction ^f duty. "^ Tfié di%MBèu£ral8n6w,Torabriéf spaoe of time, jnuséoorapy mj attention; buttfaisbranohofthelawof nations, so far as thisciM^ ...jt ■ ■■■'■%■■ .7j 241 ' . Government ha^^SîwTlta^^^^^ "^ T'*' ^'^^' tÏÏ United States and the Œ^^^^^ war between Z ourcourts, judgesand maZS th«f^^ *^'®^^7 '"^^"^ng »« of thoee twi 6S.en.menXe sïïLVno'"^^^^^ mcipal crimes committed h^ Z !°« »°PPerafave, sd far as mu- on ffited St.te^tLlon^^Zf*^''. ,t°?^«^-t« «tateV alone is in force between tijeTwoo!?' ^ *^** *^® ^*^ «^ ^ationa teoope and «ubjects!'' Thl ou7couI3f .'^ «leir respective .charges are brbnght againsk anv rTi? ?. 1?^*?^ "^ ^'««e^ ^^ere vemSent, of hav^ cS •tîS^.^^''' ^^.*^® ^"^^^ «tàtes Go- calledlojisS^hoStfl Tf'''.'^^*^^ "°^*« ofliéso- -0 charg^d ^ cSntdlfe oit 0?"^^^^^^^ or soldier, the criminfll onA » o!wi ^"*<"er , if he be such officer which the^ct cS WM tm™;î?T'° ^'^ °^ ^'^^ State, withb «10 extradition t^ Si nTÏÎ'ni ' ^u ^"* ^^^« «Po»^ ^i™ î CanitbepreteiSLt^l"?: /ÇP'j^î ^^ "?»«* be diadbarged Confederato^Stetes ^e Ué« S ^"''^ *î^ ."S^* <« ^^«tate ^ tbe ébsepKKpSatyon ; mLXI • ^ """ ""^^^^ <*«7 '^ ^ound tb ' risiSiTde ofre fierre3J&'^ î*? *'^''* "^^ say to the frightful war, « Jf^lSS^ *^^ ^^7 ^"^ engendered by this jou think tiiat yor^dd t^-T' V* «<> furAer?» 6rT ^ueen andTj^, ^^t, ^f ^rgmg your dutv to your the United StatSn^aSl^ • ^"^ «^ /'•«^ost Marshal to numbew now co^ed l? iïL^T''"? ^^ ^«^ *° «^«U the theèueen'sproclamititofneSrJ^L aT^nr'/^^ ^ '^^^ par with the bench of l?pper Ciïïa^' ^J*" placo yourself on a our neutrality laws haa rK «ÎÏÏ7 x ^® P^etended noUtion of iheymareheffiU^Sirte ^ Had bave been a grave olenceaS *^« *°^ °°^^" %i«& i* ^ould gravate, m tfie s^Sf S *«*^î °»'- Govermnent ; but it camiot ag- ^^d^rS^Sf ïîî^'^'' ?" ~'**.^^ ^•«««'y afterwards pï^ / m the words Jf HXSomlr^£^^'*Y^^''P^i^^^J^^ I ^eir^en^^S^tlMél^S^ *• ' , / . ■ ■ ■ ' • ' ^3ï' ;•!■'' ■- ■/ / ,*f 242 a^mit that our clients hâve any claiiii to be belligerents . The peopl» of the State of Yenuont are, it js said, frightfully excited at the idea of one of their tovns having been captured and held for thi^e hours by a band of twenty-one pretenaed Confederate sold^nu The booty taken from the banks, no doubt,nd^ in her possession and #26 in gold in W SV ^ ^ m Orieans^here she .JZàfl h" 'in^''^ tiTak:n ttm her, and in a strange country she waa tumed «nf ^/ *f^ Itreetetostarye. So mucf for tbe h?m«Sty rfSS^^^ womenandchadren. L.tmho^t^^Z^^T^^'^.^^^^^ it wiU faU firom the shoulders of the m^ of the nineteenth rSi,^ ^e world. It 18 a sad and melancholy prospect for any mmi of Jhe Anglo-Saxon race to behold that faiïfcpibUcTwwSf So^«î S an infant m years was a giant in stature, ind which but a fef ahor montiis ago was the home of freedoûi a^dUe aaylum fîr thetl despotism is exercised, where liberty is no longer known s^e b faction, and where those whô seek m asylum f^m <îe p^s^uL^ of fte task-masters of Europe, are driven, like qatde to th^Kbl«« by Ae speculators in human blood of the New \ldrl4 It MmS I say, for any man with British blood ih bis vems not to aSttie hero^valour and determinationwbich bave caused the Confedwates " ?«^*" ^ SZ"°'P? *^«'* ^^* ^ere thought to be iZSe difficuUjes Though Aeir cause may now look despST^at valor which bas enabled them ère tiiis to knocfc at WoTof ^« Capitol wiU,I verily beUeVe, i^me them to repejî^he attei^ïî sucessfuUy ère liua war be conclufled. Such I EeLeto beZ sentiment of evenr Englishman in whom the disgustmgTve of taSe bas not destajye/the traditions of bis mother cCKd hia^ uibom love of flur pla^ and hatred o£ tyranny. ^' ^ ^ ♦W?k' " you, Sii^, for the gréât lengtb of time %t I Imve taken m laying bèfore vou my vitws of thTcMe I ^ hâve reÇrred to the responsibiUty of the coimsel engZd • I mav now perbaps be ï^rmittod to wnirk.upon iiTweighUf lî^^JJ , bi^,iii ans caseanopportunityof immortalismgyourself asa S' ' %s M not au ordmaiy suit conûng before S^ni^paTfS " wh^ bv allpersons save the phùnti&nd alitant wil/be Sfi m aweek; it is one which in afl»r yeaj^ wiU reflect cwdi^n lo* dlî? "^"^"^y ^"^^ carelesàness or f«?m auy othe! m^vS'iM de^^on is UBsoOnd, you beq^eath .to your cSdreu an^une|S ^j5onclu8iQn, I trust that your fionor wiU asoribe the imp^^^iki^ ty ^^"^VS "?* ^ '^* weakness of the prisoners' oSK my inabihty to do justice to their claims. * ^'^ !?'"' ■"V • ■';'■ tffc ' ' '. 'tfll ff! ;|K •,' i. [ft Jf Ih ■i IP '# CI II .i«:i: »-* 4fc&-, im^ 244 Mr. LafUmntêfQ^O.jntàd: — If it were possible to divest this oase of ail interest, préjudice, and paavoD,— if the naked propositions of law and faot, upon which it resta, were alone submitted n>r décision, the taslf woula be easy. If the demand were made by soçae small renublio of South America for the extradition of five oonunissioned aoldiers, engaged in a civil war there, — admitting that the^ had violated ail the laws of hoepital- ity and neutnlitjr of a neighboring countiy, — no argument would be reouired. Unfortunatelj ror the prisoners, their deeds hâve created a deep and gênerai sensation. The feelings of their enemies — our , too powerful neighbour — hâve been aroused: violent language was usea towards Canada, whom they held responsible for tbia mjuiy. Our oommunity feit that war was impending ; evèry individual aiready, contemplated his min in the ruin and désolation of the countrj. The guilty or innocent causes of such anticipated disasters " could not expect much sjrmpathy or favor from those upon whom they were to precipitate Auoh calamities. Every one beheved that the only manner of averting thèse calamities, was by soothing, at any price, the anger of our neighbors, who were loudly clùming the surrender of tiie prisoners. Fear left no freedom to the ap- plication of any rules of law or justice. The prisoners were styled common robbers, their act an outrage against humanity. Beady- made doctors of international law lud down the doctrine with ail the dogmatic assurance of ignorance. It is, moreover, in human nature to shape principles acoording to necessity, and to assent to any doctrine favoring its interest. The Government, from the highest to the lowest officiai, and their servile instruments, were most active in diSseminating thèse ideas. From this so contrived and made up opinion, a uni versai notion seemed to pexvade the whole conununity, that the case of the prisoners was a difficult, a hopeless me. Those on whom they had to rely for support were few and powerless. Their Government was cUstant and yisàk^ wtûist theur enemies were almoet amongst us— over us, dictating witii.qondisputed authority, and obeyed with crouching docility. It 18 against ^ese difficulties that we hâve to contend, more than agunst any real légal obstacle. The questàon submitted involves a questiiJn of British liberty. To its deciùon is altached the lives of five men ; and the main issue is between two nations,— one asking that thèse men sholl be declared robbers and murderers, to be treated by them as such ; the other àssertmg that they are brave and dutiful soldiers, having infliotied upon an enemy none but a well devised and weU exeouted iiyur^. It is with a sensé of shqme that one thinks,in a matter iuTOlvmg principles wMch aBrilash sub j e c t o tt^to faoW mostTwcred^ tiiafrfearinig^t oppwis jtaâes;"" 1!ho rendition of the prisoners, owing tosuch a motive, would be a i!P !'*"■"**. 246 adyoçated or more liberaUy construed the ^titi^J^^Z mdiYidaal hbertv, the freedoi of the.ioU/the^SoSK tl,/ mlum offered 6y «lem to erery individokire^SjSSt^A^ rho hftve comnutted mmi&^MB[n»t th« u.J J Jz^ hL ^T ' "^' '. who hâve oommitted crim Qot, and can not expe hâve 80 olearlj laid doi fied by soond prinoiplej «ttd athnired by them ; cion of their senae of jos oall it by no other naiçé, it the law« of nature. Aey do ation from the nilee whioh they fcftwal^of thia application, if justi- lonal law, will be approved of lègitatioa wopld imjdy a anapi- - "l^V * ^«\««t of the Treaty is toX^ S^ ^aT^Z^^t the umversal code of humanity,_those who hi^ iZ^l^â • "'^ -:'^^'^. ^ ^^^'^ ^« ^«'y bis of aU Society, ^d whose impumty would become a source of danger to mankinJ iL?-i /^"'ï^'' "'*®''®^* °^ «^«^ community to bring such offenders to juflbce,-to put them ont of the pale of civStion?- to deter others from committing the same offeïees, by the certaiity ^r^T/ "^ ?"*Pf and finding no refuge. Our law and the anv^lî? î "S* "''^°^'' K°^ <^« «ontrSy, positively excludes any pohfacal offence or any crime arising out of ipoUtic^d struggle, ÎTnLTlT'- ?^*^ ^'^'^ ^ *^« Treaty-Great Bfitain and the iL^st?h«^'""-*'',P^^'^"'V ^*^^ '"^ dispositions to ofifen^B against^the municipal code alone, carefully omSting those which pajion and having for their objeot a poUtical reault. ^£e beat intMpretation of tiie Treaty, and oi^p. whîoh the paity claimbg Uie W« «L •' S?"*^? .**r^, themselves wW thit Treaty was made. the sll ^"«''^**^* W« n»«»«aee, transmitting tfiis Treatv to ta ,i the Senate for considération, the following déclaration: «The ^ ' Tl^Zt '""^'''S" «^«rr^d Treaty, iscaîSS^ confit Jd Ltmïtiv! Tîl,"" *" ^,»°kin«re jjgf part i e» yh!• aaoïi criminal ; but eyery mm who can appreciate right aiid>liberty » highly interested in jealoudy rewsting thé «xtenâon-of this ptjik- ciple to political offenders. God and cousoîeaoe may oonunand ohr résistance ^ainst aggression or illégal arbitrary power ; we may be crushed in the attempt, we may hav« to flee for refuge eut of our coufttry, and a précèdent in such a caae fis this l^scomes a rule of international law, and it would be invoked and appUed against ua. Whenever a party or a nation is interested in obtaining the ex, -»— «.i V* ni«, wmuu enjoins ine 8UDj< the enemy s subjecte, impUes a gênerai order. j subject carry on war or make captittes it may be the sovereignty pf his own nation, Wt if ' nafaonal law^^MaUeck, a major-generaU « •• n"-^' aB^^'y ^®" 8*a*«d thàtwari officijMly re|). ^^^ declared, or [mdividual mem- ft uid gîves ^^^â^add to his strength mhmb^ï MSm^ n^ï^^it BynkerBhoek, p, 4 : " A nation which ha^p^mother i» «J*;fiî-i-iiAi*» '258 ^ - *î- -*« «?ct may certabl^bl ThVo© of^^ S flr^""^'^ nation thinks proper ; nor V the war to cea«e a«^«ii î ï'''^®^ received a réparation or eauivalenrf/T*^!^ • ^i*** ^^® ^«» ^hole commonVealth and aTthe li^Jf «^juiy suflfered. The contained within it blnVl t^e 3'^-^^*'^ ^ ^-'^^^ at war, and in the same mander m wTmteivi ^^°"?, «^«7 ^^e and^up^ au the property of our ?ebter Jf. "P^'' .*^^ P®"^» seize thTwhole o/the Bu^iecteiLS Sî^ •' -I * T.®.^e'gn «» war may posingeventhepa^fes^lhth ^u^ to act as thev did- guniv^W !k ^ ï ®/^' ^ *<*^^eir right auihoritv, or b^nd t^S^ '^Z 'fii^t^Jr^J 5^^' deceived aa to iheir rijrht and ditt^nfM •'''F ',?»<; they had been Government, stUl f Th^y Z^^^^ *^! «'"d^" <>{ their grounds and with suSnf ffiorit^/hevwn 1?^^!"?°° P^^P^ to American criminal laW, be held^;Sî T'ï' ^^ accordîng crime. 1 Bishop, § 242 lâvVdAwL *f T^"** ' î^^'e'^ouJd be n? légal njle is cl /riy^tl&^^^^ 'l^he accused must dépend on the circih««SZf fû ® ^^^ ^^ *^û Hère the rule iafthat ?f orL^^^rM*" ^^^ '^PP^*'' ^'^ ^°»- existence of the factewhîche^me^K *' ^'^'^' *^« idea a<5curatelv, if wiC hSVor ., r^^' <^^L*^«^Pre88 the in them, he is legally bnScént tho„I î^'««««e» ^ does believe taken." & thore to bTcSZÎÏS^^ .i* *""^ ^'^^ *^*<^ ^^ ^«s mis- /«rani»; which warindiswS^^^^^ Sî* "'"" ^"^ *^^*^«* «^»^«» offence? W^ ieM^^TtLl '}^ constitution of crimihal n>otire,theimX^wfr^^^^^^ to indicate it. The Frhaii, but biSr Eé™ pî^f?*'""' ^ "° °*^«' countiy, men b^Vound'whXou A pr^p'^^J^^^^^^^ twenty yo J^ them to a certain almoet ignoSniS,™\*ï?"" ^^•^'' *** «^^^ a town of four/thousa^d fhawCte lî iL^/"« possession of pnvate plWdér is excludedXT^^ °^ P^'^op'J Profit, must be ont |U|Lldli« Moreover, the offence r 254 Umted States parties to the, Treaty, not solely by the définition t of one or ten States. Would the parties be tried or held as félons '' in their States, in Bjchmond, in South Carolina, Georgia, Tennessee, or p any of the Confederate States, yihù were parties to Ûùs Treaty ? Cin it be presumed that they demand the extradition of thèse men? Assuredly not. The conOrary is the case. Can, then, our Govern- ment and our Courts, in justice, as a fair interprétation of this com- pact, yield to the exasperated feelings of a section, however large, however powerful, of the contracting parties, who choose m stamp an act as criminal for the sole purpose of using the Treaty as an en^ne of oppression against the other section. Every bad case . foun^ed on wrong princlples and bad la^ is prolifîc of cÛemmas. .. Thé United Stettes contend, and this Court bas decided, that the Treaty in question not oâly covers û£fe;ices againstthe United States «p nèmine^ but o£fences against eàch^ State. We are bound to acquiesce in that décision, but it inevitably leads to one of two con- clusions — firsj;, that the loffenCes so enumerated are to be those crimes as definêd by common law ; or secondly, those defîned by the Statutes ^ of each separate State. That statntory crimes are not intended to be included, the Executive of the différent States hâve repeatedly declared. It isuniversally helà, that by the Constitution, statutory ' offences are not to be included for extradition between themselves. No statute of Vermont, therefore, conceming robbery or murder, affects this casé. Vermont might make stealing of a horse murder. In the Southern States stealmg of a negro is <^|^tal robbery. Dùellingîs allowed in some States; in others it is lûi^e murder by statùte. The slave trade is defined as piracy by some laws. The offençres enumerated in the Treaty, for which extradition alone can . bô granted, are arson, robbery, forgery, mrafcy, murder, as defined by coùûnon law in ail and every State. The question is, therefore, repeatecL whether by the common law oi^ Florida, Carolina, and* ail the Contederate Btates controlled by the state of war now existing, the offences against tlie prisoners would be admitted as such. The political character of.the deed would be of its^lf sufficient to dispose of the présent application, and the case of the p^ners might rest surely on this ground alone ; but independently of qiis reason the military character of the prisoners and of the deed, ^Vld also be a complète answer to the demand for their extradition. It is estab- lisfaed beyond a doubt, that the prisoners Mfere solcfiers jegijdarly enlistcd and in the active service of the CoHfederatef States at war witii the United States. Great Britain and ail the civilized world àcknowledge them as belligerents. The moment it is proved that thèse meawere regtdar soldiers of the Southern Confederacy, duly =^«M»mi8«M3«d^ or^^mÏKed^ai&d^aiCti&g^with the tumo fem of tihe i r Qt< iy ^- emment, there ends ail question as to the application of the statute. iiii^. ?, . 256" ■ .■ ■ > There can be no possible violation k the niumciDal kws nf th^ «nemy by soldiers of the belligerejt TbTZï J^ u a- ^ *6.the e^emjVlawB, because fhe'towb A7st2 "nf 'K ^1 qWm''^. mtematiori4l law deVpted to wi^ 2 BurlamquT ti *• 15°'* ^**''*°' ^'^^^ «^««î '^o bounds to the rights SSe ït 18 yerydifficult to detennine preciselv how fer it î? Jm^IÎ f!î ^tend acts ofhostili^y even in il m^ti^Ir^^'^^SZL^e of our pei-sons or for the réparation of damages, or^^XS! option for Ae future, especially as those who^eng^ b l7ZÎ S^ or ani'f ^^ -^i^^* "r*^^^"*' ^'^ ^*^ hÇerty to mfde- SST' t ^^ "^'^ ^^^ ?">?«'• And hère it is to be db&erved acM 01 fiostilty beyond the orders prescribed ; vet this is not b«^ they suppose the enemy is injured, but b^caC fl neces ^M^.the generah qrders shoulcf be obeyed' and that nrihLrv S ^e should besbictly observed. It isLso'iTeoZuTnt/f thèse ZS'' ^À^fT \^"' ^ ^ J"«* ««•i ««lemn wa?, Tave pushed rf«ighter and plunder beyond what the law of nature perafte are nofc generally looked upon as murderers or robbers^norS héd is «acA. The custom of nations is to leave this pomTto ÎKdence ^SirmTbrorriï- """ ^t' than^volve thVmrC itf wouDiesome Droite, bytaking upon them to condenm either nartv ^opie^^t the law of nature. Let us suppose that in the inde- pendence of the state of nature, thirfrjr headsTfanrilies Tnhabitenta lÎLT^'lS"^*^' «^««W haVe enS^d înto a ^^e Cattck^^^^ «ffltdJ^Tr'^"^ t^^^?'^^ °^^^^' I s y, thaï l^^^WÊtU^^" had not j^oined the league on either side, Sa i7^ KT^' '^ "»«rderers or robbere, mj of the twJ ç»rties whi^oufd hanpen to fall into their hands: ïLy couîd noî 'k Srt Ai A. ' ^ — K^vu w x«u uiTO meir nanas. 'j ^ it dunng the war, for that would be espousing the qu^rel of one paw in thef rly renounoed the right of^Xïng with wEh3 "tf- Muôh les» oouW thej|iiptermeddle after the war : i< ylli.^î, J fii ï" »J .p*'' L , . r- 256 % 4 €\ ■ s'W . 12^' !!?T' ^ '* *°'^, '^^^ ^ «"^««ï '"'»>0'»* «om« accommo- dation or treaty of peace, thé parties concemed were redpSy ^harged from aU the evils tLeyhad done to each otherVThî ) For f thoae who contii«arraSaa stiirbeen ftuthorized totTê cogmancey the acts of hostihly, ôxercised ia a forei^^ww and l consequently to punish such as they believed to have^cSit^ : any injustice, and to take up arms on that account ; Instead 7om troubles. The more wars became fréquent, the more necessary it was for the tranqoilhty of mankind not to espouse rashly oth^tow- ple's quarrels ^^ establishment of civil SocietirôiJv renffi the pract.ce of those rules more necessarv ; because wte of hostiSy att^ded with a greater number of evils. LasUy, it is to bo obwrved,_that aU acts of ho|^tj which can be lawfiiylcommitted agaînst an enemy, may be exercised either in his tenÉkries or in ours ; m places subject to no jurisdiction, „, they ^ei^ respo4ibW t^ lem r^ the acts were beyoncl *e ordinaiy tirages s^ctioned bTthe î^ ^il u .»^*r*'*^^ miUiiy court-martial and treated aoild- sZ«^lîi»^'" ^^^ taken^ftsoner i« thflJnited „ Status ,athto|||M| companioù^^ soldier #BurloY, who has be^ .extradit^ œSSbery, theyl^d him by courl^iLtial JS Aeî fntenced„«mdexécuted,hiihasI|ûi^fer,Vr^^ '^ îawsofwar. Tbe printed din«^ iûid regdations fotXuS States' armies «ontain «jjw^^iona for caws of th» kkd tod " provo condusivelrthataE Lhion ¥the United sÏÏ^ÏSuC* ^^?Kr . \**ï «^'^Pïy ^ithin miUtaiy jurisdiction and pnvesdàersofth^.unmunityattaçhingtoprisonewofwar.^^^- „ ^mi. b4 of thèse régulations state^ : « Armed prowlers, by wh»t- Z iST ^^ T^ ^ '^"î^' ^'f^"ons of the%nemy'; tSy who steal wjthm the hnei of the EostUe army; for id purposo^S are not entitled 16 the nrivilfl W« of A* Jx^^lJT^^Y^. '^» .f-L II, • „ « .„% 32" VJW, 267 «y exuuple be found in the hw»/»™ ^f in the open facfc of a murder or r*Cl î? V '^ * "^''^'^^ ^^^ deUvered over to the enemy for Wal bTforl Ï! 'T^' ""^ '«** «^ W»» m Spaito, in the coimtrv of anVn? ? jm °"° Wellington eren then tte civil iuriXtion oL?k- ^'.ï? *^ "°* acknowlâge dations expressif pS^r?,\T orl^^^^^^ ^«P- to be tried by the Spanbh couVf^ V • ? ' l ^'^ '^^^ ««"d them to be tried bj oourt^Sal «^?t2Lj"'''°*' ^"* ^« «^^«'^'i theffi by tbeir own muflSî^S*^^^ ''"'" sentencéd.to b? hung dL -Jer ae Al^'Sioi^^^^^rr'a^^^^^^^^^ ^^ mntoion, hè.be<5omea au instrument of w^ ![ '®' ^** * «^o™- «d agent and reprtoséntaTiv^ofThe ffi^^^^ P'^'T" ^ *"*<>"- he may do, for Lr^ injuil Ve c^ fiSf.r h^^'' Î^"* «'^«^ "^^ ■coveredbyhiflconuSsici^hancXK^^^^^ a™lr-"'V? ^""i^ can judge, Ist. vol. of his ^ox^^n^Z^^^^,!:^'^'^ !"^«°* ^merî- p. 94,96,8aya: « AlthougUXteo/war nuî^^^^^ one nation in à state of hostilitv^vi, i P"*« î?^ *^e subjects of the the customary law of Eu«l èL^L* T f • *^' ^'^«'î 7«*» by uM %e enemy. If suŒVonfiL^ '^'^"^ " "°* aUowe/ tp f^ fcibey a^ to be^cons^deZ t l^lZ inT''/^ *" ^™P^« <ï^^«'»««' > 8tet«. and are entS ^^tà.ZZt T''^'""^ °"*«' «^ i^W; and the captures wWch^^v nf»?-"^'''?*^ *« **^f"jJ ' aUoSto be lawful oriT R^f*?^ *^®x "* *"<''^ » case, are . h08 JE^i^ifchiïlXSess r^Ltj '*T.u* •*°«*«« •» «fife^i'^e theyNhave not areTuirSST r«vf '"•'°?T«"î »»<*«• moderS warfare. If Sev den^lT *\^ «'•''gated ^es of <»mmis^on,theyacr«She^^^^^ the enemy i^a by tbeir own ^oîerei Wt Kly l^nï? wl^ a nataonal commission, and within the temsTthW " •'"**^'" M quite oear that thev are r^TZ^Ar^ l . commission, it Pjrltes by intemS r^'l^J Xi^th^^" «^^l^as of their cçmmission, unwareintSî* IT J ^^^ ^^""^^ *® """<« iiiiention L, be DSvSaS'J^J^l^î I'^'^^^^' ^^ ?? V^^ •1 I '^f' ->» , .jak..);^^^' n. m là K 268 another, lire not liable to be treated as pirates iii thos «ice«dmg their authori^. The state b^ ^hom the comoûssion is grantod being responsible to other nations fur what is done by ibi eommis- sioned cruisers, bas the exclusiTe jurisdiction to try and ponish ail offences committed under color of its authority.*' , The same author in a note, p. 248 : '' Bat in the case of ônç hâvinc a com- mission from a party to a recognised civil war, no irregolanty as to acts done jwt^bMi^ will make him'^a pirate^ He stands in the aame pomiion as if ho held a commission nom iMi establish^ govem- ment, se £ur at least as regards ail thé ^'v/ '^r t.-/ 'JTJ •7 269 / oftheir writings, when occasion ig offered for comment a m^ Btrong condemnation of acte which they qualify ^S^^A^^. 181J. 8maU,open and defenceleas townawer« hnmÂJ LT ? ?*^ «narméd and mioffending people wZS tZ A™5"^''« ' d«uijd for extradition r.^0 ^ ^V^àXZ {* Uf^ «aejjd^or»^„t,whe.herforo„op„rpo«t r^^^^^^ T. \ ' . MoNDAY, Martîh 2nd. . h* w^ i*"? *^* ^y ^® interprétation nniversaUy «yen and STL^^ ïn''*" <'^»n*«8*'necommofion8,cannotcome within Ae tréaty, and I hâve estabUsîied that the acts^imputed to Jhe nri î^ W -^?- *°PÎ^* documents which hâve corne to uS BÎnce tibe httt sittmg of aie Court, m first is tfie despatch of K ito?rcCrtTfXfe\'T' rp^r* ^^*' p-^^^ PHWy b/tl^ {^S^t^ M?M ''^'' discharged parties accused of ^^^r 1 ^ T^r^ ^^^ wvemment for h&vins. taken noasea «^^^f the Umted StaS^i Roanoke, after g^^on boK r*™*„ ^ne other complamt is, that certain nassânirera niw.û«^L fi^ Havana in the UzSted States >esseTîœ:"Sn^î^elt? totS 1 fL T^ ^'i^^^^ ^^I' *"^ ^«'^ afterwards pennitted act ŒL^*o ^^ P®'**? arrested for a snpposed piratical act produced a commission, authoruring that act aa^^^of ^^^à. ê /:' V 1'^ . *■! >x .'/'Av*'-vv« ^V^rf ^'Wl-^ . Mf, ii, 'L. \ . 260 "1' 'i; m4"- V, --^r war froai the Government of the so-cayed Confederate States, which are acknowledged by her Majeatj's Government to possess ail bel- ligerent righta." lie statement made in this despatch affords <^é most conclusive authority in favor of the prisoners, to establish the principle that a commission from a belligerent is ail that çan be required to justify^any act of hostility against an enemy;*^ïhe act alluded to in thia despatch, certainlj, 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 h«r and destroying her, might be qi^estioned as a legitimate or regtjar act of war, sanctioned by modem usage, but t\m question could «ot be raised after the production of the commission ; 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 mb Beall, who was acting under the orfers of Burley, who was" extr^- 1 dited for robbery by the judiciary of Upper fianàda, althdugl^ thè offence was identically *the same as that of Beall, his subordinate. Beall was brought before a court-martial and tried there,-n# for •*- robbery «but for a political and militair offence, the violction of the rules of war. The charges are specified as follows : 'i Spécification 1. — In this, that John Y. Beall, a citizen of the insurgent State of Virginia, did on or about the 19th 4ay of €ep- tember, 1864, at or near Kelly's Island, in the State of Ohio, withoùt lawful authority, and by force of arms, seize and capture ■the steamboat Philo Parsons. " Spécification 2.— -lif this, that John Y. Beall, a citizen of the insurgeât State of Virgniia,*lid on or about the \9th day of Spp- tember, 1864, at or near «aiddle Bassljdand, ia the State of Ohio, nvrithout lawful authority, and by force m arms, seize, capture and • èfink the steamboat Island Queen." ^ . ; i Upon this accusation, the United States authoritiea, through thè» Jtwig& Advocate, deolared that this very offense, for whioh they obtained the extradition of Burley, Was a political and a^Miilitapy oflfence. They positivély declarèd that the offence is not a civil <:^ mtmicipal one, |hat it cannot be the subject matter of trial by oi;di- nary Courts of Justice. Hère are lus vei^ urords : : . " I was villing to admit that Beji^l was a rebel officlr, and tiiat '"■ lâl hé did was aUtihorized bv Mr.jDavis ; becaus^^in my view of "the case, dl that was done by the. accused, being in violatioD of <**. thé Iftws of war, ho commis^on, command ojr manifesto coold ins- *« tify his aots. ^ 4 "' " It is^tme, that ifllt«se enoipities had beep ç^unitted ip time * * of p èa ce^ 5r by ordinâty citizèns, rogueg^t^jadtd^parâdoeg, (^ ■M \f I . ' irf-'- . ^ îa^^£Ei^^;»*s^ ^.fhUo«ioe^,«,»i„a,gi;i^S-^i;--;^'^- ^^ '^^ »#; " \ ' -»■: t V' ■li :■ . .,'* ' ; . > 262 . convey a message to anoljjèr division', if found within^is lines, the enemy la justifiable m trying them and executing them, but the - victims are devoted, sometiiàes the most noble soMiers. They are m conscience, in the eyes of the world, and before God, free from gmlt of ai>y kmd. The case of the unfortunate Major André is a striking illustration of this. ♦u"'^*ï*^®?^'"n'P'^^'P^^'°^*^^''*^®- Itwaa,itmighthavebeen thought by the Gonffederate Govpmment of great politisai moment, ând dictated by the Ijest reasons, to order this raid in St. Albans Bemg unaWe to cfièct it by an army sufficiently strong to run oVer the whole terntory as Morgan attempted, they caU «pon soldiers to do it by M-fafice. byreachmg that spot in disguise and ttien to levv the contnbuti. »n,' or plunder and destroy . They did so boldly and o|>enly m brodd day light. They were liable, if taken, to be shot on the SDot ; httle chance could they hâve of escape. If they had been talK^-m^the exécution of thèse orders by the enemy and tned and conde;nned hy a military Court, would they not hâve been innocent— could they not feel in their conscience that thev ' were not cnmmals^? ^ ItMa been said, and it will be probably repeated liere, that this 18 not a proceeding sanctioned by the law of modem warfare Admitting it was a violation of the usages of war, is there accord- ing.to the lawsof nations, a tribunal in any country entrusted with the po^er of judging nations and condemning their policy ' If they deem it expédient to deviate from the rules prescribed by justtce and humanity, they are not accountable to other natioiiB their equajs ; for mdependent nations acknowledge no superior on earth. Xftw is an elementary principle of the law of nations. The only quesbon therefore can be whether it is an houtUe act com- nutted by an enemy against an enemy, or by the soldiers of one bel- hgerent againât the enemy. Takmg it to.be an unjustifiable violar tion ol the most unquestionable rules of warfiire, still it would hj an act of war ; irregular, if you choose, but nevertheless an act war. It faiight be a violation of the rules of war, but it could not be an mfraction of the statute of Vermont It midit be censurable, politicaUy immoral, but not criminal in Se civil or mumcipal sensé of the word. It never could be defiiled • murder rts^éographcal situation. If a Aing is done on thXppZ. ^ nock, it is nght and legitimate; but sa you g» HorthwardTthe moralïfy may decreaà^; it altogether chapes ^aîid is Xr2d so tben ,t u converted mto an absolute crime. It muât be admitted .that the Ignorance of thia rule of war mi^ht be myoked"at1eMt.1« aijo^i excuse to the parties mfringing itto frtfnlse ves^^^ «1 cnmmal mtention m the mattçr. "«eives irom thattWHW**^'l*i*' **»«?r'»*^ »««t«l territorW. Admitting îeîLj^Sdî® Mture, the chanwter of the deed? It "may be a ■^ : F m p w^ 2$^ civil war, wiU the fact of committing a trespaaa on nentrol etwuià olwmgo their mtent, deprive them of their character of aoldiei» or partizans and transform them into fpommon criminals ? It would bo a new pnnciple of modem warfare that a trespaas on neatral terri- tôry would convert an act of war into a crime. The judge i» m\ ^led upon to décide a breach of the neutraUty UwsTbut npoû the^nmmality, the criminal inteût of the prisonera. He is caHed to sabsfy bmself that an oflfence against the municipal laws of the Umted States has been perpetrated by them. If they had violated the temtory of Great Britain, they were amenable to the tnbunals of the country, and responsiblejo them alone, and not to the Umted btates. We can, however^ dispute «he violation of the neutrahty. Two facts only hâve beèn estabUshed from which any such presumption might anse,— Young'» interview with Jr. Olay at St. Cathennes, and the travelling of five of the soldier» engaged m this busmess through Canada. Besides this, there is iMthmg m the évidence to constitute a violation of the neutraUty. How wUl the transmissiori of orders by a Government agent to ono «t the o^eera of that Government, supposing it were to direct his raovements m a hostile expédition, of itself constitute a violation of ' neutrahty? If such a principlé was affii^d, then England could not act through her ambassadors or her^avy officers, when in neutralground or neutral ports, to convey oMers or instruction» , to those directly engaged in hostihties. The correspondence, the transmission of orders, would be declared a- breach of néntraUty. ihe quiet passage of unarmed soldiers never did, according to the laws of nations, constitute, even with the intent and object to reach the enemy s temtory, a violation of n^utrality. On the contrary» the peaceful transit of .troops is recognized by the law of natioii; and both belligeren%_can exercise it. In this war the «United States^ hâve exerciseA such right in Canada. It is proved.^ the other hand, that thè whole plan was arranged m hostile terri- toiy. The enhstment and the préparation of the scheme was set- tied upon m Chica^. The act, however, as to its crimbality witii respect to the «ubiect-matter of the treatjr, must necessarUy be exammed, mdppendent of any foreign or coUateral circumstanoes» and, considered in this light, no criminality whatever can attaeh to • TV " ®«entially a hostile ftct, an act of war. ^ * Burlamaqui defines war to be the state of tiiosé who try to deter- mme their diferencesby the ways df force. Wheaten, p. 5«6^ Ihe nghts of war m respect to the enemy are to be measured br the objeots of the war. ètrict|y «peaking, it is the right of m . eywy aiMns neoesaaiy to^accoinplish the end." 2 Klaber. pTlS t btt t o f Mfth of'flio b o llig crwls ) euvci ^ lu pa rt te âw figrW ) l % ■A 4 'I /-J- .. )/, k %■< ■-.»!»;:■ m 265 . guerre injuste sont illimités. Il n'v à dono ai,/..,» «.„ i yiplent qu'a soit que l'ennemi n^puil ^«10^'' CL^Î^^^^^ M aud 4, gpes even further, and' lajl ZZ'Z Jl^'^Zt ^ect ^mit hat s.f^\!:'^è^(Jt:^ nght. Civilization and the well-understood interests of ÏÏ com^ ^'wiiT^P'''""^."^ modération in the exercbe of thS rfX and established exceptions to this absolute principle of thi laf of . W, by sanctionmg certain rules which hâve generauXn adonted bycommon consent and çommon practice, wifhout lrt«ver Saf Zl^n P.r'* •'' *"2 ' ■•^.*^ "S^*' ^^^h stiU remaiS the emSt CTstj^lc^^S'^ f'^- ^'*?r*'^^ ta,wlûci theVÏenco of , ^^^L'^^V^^K ^^^ «"^® *lïe war s a content bv force befc^een parties who acknowledge no common su^rior! and S it mclu^ not in its idea the supposition Tan^r Sntbn wS tta^b:tta? iÎTwî^T"^"^ '' forcel PnlTalt o Zr^r//'^ ^^«- rciplelsirelLri^^^ ger aiMl divme whom IhaVe just quoted/ War is liceSmurdr ^e, plunder devasfaîtion/aad^ destructioî?^ HuZitTÏy' ^r, phibsouhy J^r revolt, apd seek to soften ^nàVlJZ ^ fW /^' P7»Ç'PÏ« Of unmitigated and unrestrainedC S'h. -T^riJîr -'''^r^ ^«'' «^««P* thoee» implanted in tht WtBoftiiebeUigai^febjtheCmaU Ail the amelioi^iW ^T^'^JT''^^ '^"^^^ ^^ BtySd rules and^s ofW 2r°^"'/K ^I ***' ^^^ of ii* and humanTSc^ S S^. r^ J^^'T^ "»ates exemption of ptUrt^ivm^t^^ Z^^^^^K''^^'^'-^'^'' meohanioal agents oîa superior ÎSTffiï; !^''*-fe"' reaponsible for thd? abtions. Ivery ZJZJ^^1.^'^'^'*^!^7 thèm mttit be considered «s an actS ii BniOHS aimprovod trf^imd^ coudannetf liv:fli« n5îîi»n ï^»i.;^~ »«yl>ek)iig. 14e parties tothiiappKc|^onhlfveftckno|rledg^e ■*A •» a ■■-*■» «. . < '4 -%. ^ifli 1 r /-3 I 'N * '( ^ ». t ■'■ " ,. ^^^^i^^*i -^S '.f *-f^: p. 1^;. 'n^H li:. H H' ^^H If l-î l\ ■iî Jll '*' A I » 266 • pwfKmers aa their eûemies, and as eoldiei-s acting on behalf of the Confedemte States. The parties in thiô case themselves kve quaLfied this very aot of th& prisoners as an act of war. The , bwaks did »o hy a public notice gîven to tiie vorld, and whicb is proVed in this case, offering a reward of $10,000 for the appre- he^ston of the armed raiders who had plundered theia insti- tutions, " an armed band of raiderê." Mr. Bishop, the wit- ness for the prosecution, and one of the parties who published this notice, says, « 1 hav© sèen the*» tenu i^ used pretty often dunng the war. I «nderstand tliat raîding means the ma»ch of an army mto the eneray's country; by army, I ,mean a large , or a smail numberj pf soldiez."' So Mr. Bishop a&s that the . prtàoneràw«re Cbr^^erateBoldiër8,and that fchéf came aa suoh , ; mo ht. Albahs. Xhe. delnifeion of the wor4 « raid," given by Mr -; Bishop, co^espoi^ds with. that «^ aU the.'Americaa dictioimries! .Itaid is defined, a hostàle incureiôn. Ttt Général Bix's proclama- , tion, which is also prcrdiî4i(il, in évidence, the prisoners are therein atyled rebgl maraut^er$} The ï^emdent of the United States revoked the latter portîoh 0nly of General Dix's order, whereby |he latterinvited every America^ comBiandlër on the frontier to oross thè boundariea, and leaves the first portion subsisting, whioh çontained the distinct admission that th© prisoners Were rebel ma- rauders. , This was a poâtîve admission by both the militarv and executive attthoritîes of thè tnîted States, that the parties engaged m thw act were mililary m'en, that they were rebeb, a&d that their object WM a pohtico-mifitary one ; which was in direct opposition to the detaandnowmade for extradition. So, the paHiee injured, the . mibfjuy authontîas and the executive of t^ United States, hâve ad- tmtted that the aoCused w«re rebel soldiers, and tèat they coinmitted the outrage as such. Thè beat proof n «Hm case. Atev^iy st»p, lit èvery stage; your.Honor is called upon to applya pnnciple of international lèw. It is the only mea- • sure bywhifeh the &ct8 can be teited. The prisonere assert theb- immuni^ as soldiers ; they rely for their justification on the law of war, and contend'thj^l. their act is parfc of the hoetilities of tiieir coTOtry àgaînst their énemils. Tï^ applioant» on their side will, nodoubt, contend that the priBoue» violated the ruies of war reau- latmg the mode of carr;5ring on hostiUties. So, it becomes entâiày a mM»tioû of transgression of the usages of war, èvèn m the opinion pf the applioanta themselves. The laws of war are part of the inteçwtidnal laws ; every question of international law on this sub- jeot u pohÉïcal. To ascertain the criminality, to be aatisfied of it. ™» joage mnst fort décide thât a viola tion of ih'^ffg Jam Jm- »^ «ommirteaj-he igust ât on>lgnient u^^ nations, condenm. flie '± ■^t' .V • <->ï ■■Ûf. \ëmL ■ ■i-A,,:-^-SiAA>^ij»L-c..j-.^.ùiiàu , and whose agaùts they ware one to whom those soïdiers belongei, ana whose a^At,>* tha^ and after pronouncinc the meeBiftJnfiL^^^A^- .^ ^®^' expediency require If mflVîfinW; !« ' ^eçessity or even tfarrifflif i 'VhJ ■ J"^* °*^^le lïi any caae, who shaU judge of s cénsur. «^TkP^'^ '^ '' ^"^ °^"'* be. considerXfreffrom obtauT satisfaction, let them retali^tn Tjl*fi\u ù X^^.^"^^ ïS't'wtff'f "" °» *» Art o?t Lftl tl'wïï pomt on which it was unnecessarv io. Hw«ii mZlJI^.J'^l^ •^mi'^, if ^ '. * ' ?tung and his party had to obêf Were the prisoners to take upon themselvS to criticise Ae ôrdew and instructions of their Govefqment ? Could thevaï SiZ\ a^^mse the documents, investi^teThe nature and dut^^ffvr^ ^^r:^J^t^I^'^^''}^'y ^«"tbeyond the ordinar^ S for acbon fixed by th^ ruTes of intemationalVw? If they Syed theî ifZ'F^ '%^ amenable as common criminals tJ JheTribmïï f aie Fédéral Government, there to be tried as common WgW few ^i'^f,'^i;> the Confederato Govemînent aad L sfS itthey refused t» obey ordere they are to be tried and sh^tTS it w «ow contended by the applicants, that for having obeved thev vewd to their edemies * b« toed hs common criminals. . The pnsoners fuIfiUêd their misàion, thèv executed the a«î««. Ced^wr- ,,^«TP--^« _> 269 were and had been livine and nIoHm ,» în *ï.1 '^^n^ry. i he othera took irom ^he cWizens, and effected their eacane with thA r k!uS from amongst tbe population who rushed to SLd Ï.1«h 5.^ nght. He acLoLdged nTolTsup^Sor^h^î: cT^ T - S. nf^H j"? **." ™"«ï«»r and robber. . Frwn^e verr ongin.of ihf expédition it was a nafcioiiai hnt «„ r^ET-V?? ongin of ihf expédition it was a na yj' _-_ P»^^g» e«eoutinx it "" a^.ftujr namier aoDinimititë, ;(^xo aoldiers, were mere mechftnical <> hot an'mdividujal âot, ' «■■■ ,\ ly '• j r / à ■4' 8^^rio^8^ ■ They, «s ■^ve Bubjects of the T ■ il ^ :i -.g ; "-^îiS^' w: \'/. (flil.il i 2Ta l^f^- M' S?,*fr • ,^r^ ^«^.^«^ obédience; and for fulfilbg authonti^i 19 a it^mary and eaeentîal obUgatiei»; of aU mvE dojibted. Thig crueafaon never was îûOre jU)ly tmted and Ixsosed ment rendemi by Judge Covran k the celebr^tenS^ McS" JudgeGowaaand the authoritifes of the State of New Y^A^* tended there, that aj» iUegal act of wa* could i«>t be^^ctioled by the municipal tnbunate of the offerided nation, /fliis Zl proSblv theu^pretensions at tbi» moment. No better, more clear andCoa réfutation was ever made pf this fallacy than by this eminent a£ tlniMfcfitates, and conarmed by DanielWebster, tbe grçatest states- Bor, a^d lawyer this continent has ever produced. Any of aent» after those giyen by such hien would be useless ^!iî'rp "' ^'^'"/ïr'^f Talmadg^'s reviewto be found Tr«.mî i?oP-.' i ""^^ Wébster'8 speechj ih support of the TreaTf at page 122 of the 5th vol. of bis works.S ^ 1,^, "^^"^ "P**'' *^® Caroline, says Judge Talmadee waa hofltde and unlawful and the British mit be held res^Sefor t «.Hnt "f*'!'^^*'^"! '*"^ °^ ^*^' t,ut those en^ged in iï or actmg under lawful authority can nevér be regarded as robbèi or plund^rers, or liable to be pùnished criminally " «iffT/?u" '1-^-î *î **^« «ara^-st request of the British Gbvere- SL on Sh«lf î'î-n '"^^ "'* ^' '^^Vons^^- for an act corn- - Zt notSLnH-^'' Ooyernment when admitted and sanctioned ùj it, notwithstandmg the American authorities declared that the act m question was illégal, a violation of their soVeroSy fo which England should be brought to account. ^""^^'^^^y^ ^"^^ ««v«Ï!lT-*''"°?P^-®''^ sanctioned by the Courts of England by seyeral positive décisions. I refer to a case in the Privy Counc^ ^aba, 13 Moores' Rep., p. 22. The question there arose isU> ^mre made by an agent of the East India Company, ofproJ^rtV t Sutio„\f?h'"P""!f- ^^ .^«"^ ^ InWhadŒeJ tue restitution of the property ^s having beerf iUegally made The ^^caye ^rethePriyyC^^^ ■■■1 ■ *f ;■ ^:'.,'f^1.',^^!W^^^^^^TÇ "ib' ■ - ■ ■ 271 JBpr m tmjiMt, politic or unnolilio CS = ■ °'^ """^ '"«'> . to »T that even if a wtodï ha. b5i> E ÎSÊ " »»«o»nt Md that au aot doue hv an a^Ti ^«T î^^^' ^^ <'<'»'* a^i of a.a4"'«,*: St up'*iiL":rrr„eraf^- SZm°f*!ï*?'^*8« «'«>'*««: noneoftCrinSï otor h^j thatt rebels; *h«n J.&«od Davis is «onaideL aa a rebel, a pnrate indindual ^hoee coirôiaaioM are entitiUed to „ô f ï J '/ îî n >1 i 4 • e. .1 I ,i i: '.à «<- -il: : ~ ■ ^ ~ ' — r ■■ — ' — "' ^ ' — ' ■ — " *'■"'■ » ■:-./.7fSîi^ ■^ ^■%^ri' ■-_. ~ S!^ 1^!^ / i» . ' W- r- ■,; , " «r / / ■- V.'.' ^^> ■;■ * -,'■■*• M " - ■' '' . . " r» - ¥ :. '■- ' ■.,/" ,.. " -■'.- * ; ■- , - ■^ ■ ' " i- 7 '■'., / ■• •..■;■ *-! ' H ' '^^ /■ ■ ■ ^' ■ -^ ' ■ ■■'■_>■ 'A--*. ;■■--.■■■.*-'-'• \ -.. cw .■■ . ■■ ' -v • ^^^^Hl^' k. ■ 'i ï^'- ^ ■ " :.|| HHH m ■ 1 WÊÊ m ■ 1 ÊÊ '■v ^, -4^ IMAGE EVALUATION TEST TARGET (MT-3) k <î> A % K^ V 4^0 /..>•■• ^- «.. >-m- • -Wa 2.0 us Kl I 11.25 1.4 11.6 n-'>'l o^ w^^ v î» ftotographicr _Scieiœs Corporation 23 WEST MAIN STREET WEftSTER.N.Y. US80 (71«)J73-4503 !^^ .t^-' '^ iàiÉm >aa>î| Ml^, F.^ r JV-'iJ ♦« * »# ,%A r > , J, -U 4^*tl > , nfi>L„ i .i' i^" 272 -conaideration, makin^ every aot of war on \^à robbery, and everv ' aot of war on sea jMracj. Hâve we not tlw déclaration of the indi- ^arj of the Umted Stetes t ; aUow a prima fade case to be aU that shftU be requiredfor extradition, and you must extradite every dan- ^ ^^pBïtey court martial ofhi» enemies, that he was ::^ti^M^r^%f^.i^iLl^^É^^. ^È^^tÉ^&k^^' i-iin "• tJ - * 273 ' \' pie» a sentence of ^nV^ court n!!^-'?'^ ^^' *^^«'' *« t^is plead with the same Buccessï Be^ n .îî^''^- ^^1 ^"^ ^^«'^ *<> in the dame deed as Burley who tl' ..î S^®.*^^ ^"«^ «oldier judgea of Upper CanSa anll wi!.T ^^'"«^ted for robberv by the Davb, and who obtained for aZ^to Z r ^^^^^^^^ ^J Président wnich waa strictiy executed '' ^^'^ * '^°*«"«e «f death, oan^o^Sllf^h^n^^^^^^ ^--tality by the South- that they%e;e entSK to ob^lhe eX^''?" ' 'W^^POsition, Our Government has romS fn ^^^^^.^'^'Oï^ of the prisoners , Passing of the7^>iir£^r^,^;th their demand by SL^% rofficielit satisfact on If 'thtll 7* *^f* •'* ^" ^« considère*" protection they. reZ^e let them 1^'/? ^J^ ^'^^ ^«'«»»bors the P«rt,-they/il hR If Z 21^? ^'^Jher legishtion on our jo them,4t it be ^h^M ^ SS '^J:^^^' ^^^^^ ^^ ^^^^ remams unimpaired—ao lonir «- ^T i ^*ï"f * ' o»* so long as t ^^ 'soient £Hj^oVhl^ZT}''^r.. ^*1"°* ^^^'«l'^d ^11 protect the refueerin thf !nf ^ and shall uphold it. They inatitutions guaS 'to ht TC* "^ *?,5 «'•«^*«'' ^l^'«»^ «"^ Peaiency,toV^emVoTerrI%72«^ «x- Jmes better,— more honorable^ ™P^^^ ^*'^- ^ thousand I?t the World know tff SL? ^^'^^^^'^ J^?«*'-it ^o^ be to right only when it shaS „ft ï '«^«««^ «hall be entitled to this better anî mo.: huml to ^v^Cw "^Z '.?T^ *^«« ïativfi ftn/i :— «-• .. "<™*>t?« or quesboned m Endan^. i. iJ^^ ^.» ('• ' I . h' '■ ■ f M t ' 274 be no more so, at least, do.not iise ît as a false light to wreck them Our courts cannot be influenced by any thmg butright S fuS- they caimot be made subservient to power or authoritj. Wo havê not ye i^ached that state of degradVtion. We hâve had unfortu wïlV ^ '""f too 8t,^ngeviSence of direct interfemfce by ou local Govemmentv We hâve seen one Judge suspended, beSe he discharged thepnsoners. Happily, however, we hâve a Se who is independent of power, and in whose hakds every man fn tlM commumty would sooner intrust a question of life and d?ath with ail the influence of Government and popular clamor aS h.m, than in the hands of anv jury ; and IleL the S,«e Tthe pnsoners with mibomided con^dence in the hands- ofyoSHonoî ' March, 21st, 1865. Mr. Devlm, on behalf of the United States, said : ij^/r'"' ^ ^^^t'"''/*'"^*' "^ g^**»fyîng to you, aa it certainly fg to the Ooimsel who hère represent t&e Govemments of Cana/a Id he Umted States, to find that the time and attention bestowed uSn thia Investigation hâve at last triumphed over the nume^us ÏÏ Z""^. flS*^^'' ""^^""è ^ '^ termination, and broughrus t« that stage of the enquiry which enables us to ^dress yofr Cior upon the ments of the application for the extradition of the Z- alljough it haa atWd to.an unusual magnitude, i^Sricted publie attention perhapsto f^ greater degfee'than aiiV|B|Te^r before made ^nder the Trea^, I hâve certainly so '^■Tunablè k^discpver that it présents any feat»re calculated to embW^ The Court m deahng with it, or that even tends to withdhiw itS the category of cnmes enumerated in the Treaty undW which we are now proceedmg True jt is that the prisoner's Counsel hâve kboreJ hard to surround ttie «et of their clientàVith grave iSaS difficult.es, and to impress upon it the character of an Sf X „li ^**^^Wlf' *l»«t ««bmitted as it will be to the test of sound sensé and judicial scrutmy, the crime of robbery, of whidi the nÏÏ rr T wT'^V^'"^ "'"! "PP^^'-' d^spite an the fïse coS under which ,t has been so ingeniously presented to yoiir Hon™1 judgment And hère I may rémart, tha^ to me it do^^eemTif my leamed fnen(k fancied themsèlves endowéfi ^-ith sLe e^trïor dmary magical influence ; for certainly without their sTi^sed ^s se^ion of flome such rare and wondeiworkin'é power, KouldTo difficult mdeed to believe that they would have^Smpted to ekvate a danng W5t of robberv to the dignity of a manly deed of waS or claimed for ite gmlty prpetratore the consi/eration duItoS kKJj&/ :* 275 MMl not as the prisonera did at St. Albans fWr fh« • v, Ihajr^said, yoÏÏr Honor, that thTrol? f ^T'^^ «^^'^«"s. mmphcty of the question bvolved b irEtf?-*''']'''^"^'"^ "^^ nary importance, so much so indeed IL^Ï f ^°®i* *" extraordi- my leamed ft^nds, that it hU becH ? '"^ ^''■*"" ««"'"« «^ me ask .hat ^^hat has llT disTng isî Jet 1^" aÎk \' ''' and given to it a woip14 wide notorietv " V „ ^*- ^^''^^^ 1^»^^. «ta signal atrocitv, the fraud and oTnn;! k ^"'""^^ «nhesitatingly achieved, ^ided/no doub?,¥yThe eZL^- ^ Tï« «^ which it wa^s' made by tl5e friands and bZS^^^^^ ^^^'^ subsequently wicked deed of its criminal iWsS?! «»« pnsonep to str/p their ' guilty perpetn^tors, h.roes if nKS "fie ,1?"^^ '^ *^«'»' '^^ may, I entertain thehope,in which T ÎtS't" 5, *^'«'>wever, as it thatsenseless clamer JîirK,^^^^^^^ of public justice. That tour 11nnrJ^\r -t^^P^ the voice aolemntristreposedTn/rrasoneWZT^^^^ '%h «"d the làws of ourVountry, wUl not suff.; !^ «'^ff « adminiWtors of fromthe consideratio/^r L^-S'^^^^^^ ^ matory speeches addressed bf the^^^^^ * you, but in reality to the prions n^l^ ^"""^^ ostensibly to^\ Uie auditory which has filU^ smE^^^ ^ym^tuls of \, , %.. And, now, let me ask Xt does Th. ^ï"*-"^"^ ^'^"^ ^^y *'> require ? It demands neither more novÏL fif 'T^'^ "P^" J^" give effect to the provisions o7aTreatrliZ,. V 'u^n ^^" «^oiild soon become a place of refuge for Sin in"/ ^^'""^ ^^"^^» ^vould .' lum for malefactors of ever/dye F™# "^î''''^ g^^d^, an asy- was ..ith the object of prote'^d^ tlie subLctl o7 H *" M^î^ "^^* '^ • ' the citi^ens of the United StaL ?r«m X .1?^ Majesty and that mevitably foUowed wherô^Lat ,. jï,^ ,''^ conséquences escape the pu'nishment due t^^*cSt: T •' '^^'^^ *<> foreign ten-itoiy into another thartlf/rf ' ^ ^^^'"° ^^'^ ^"^ and the United States enter^d into thL^^'^T''^ ^^ ^"Sland givesyour Honor jurisdTctLntotvesM^^^^^^^ ^^'^ "^'^'°"«- agamst the prisoners. This .treatv «1^ u ""^^^^^^ preferred a^nted toVt Wa^hing^n on^l^^^^Xu^^^^^^ -« fied^ m the month of October followina t .J^ ■?'^^! *"^ '"^ti- applicable to this case, with the ™*nf »k^' *^ '*" '*r'at'«»«' ofligatiohs it imposes «i^n us ifl t tj?^'^''! «^^^^y th J ated Statutes of Canadr Can 89 n Qiq T^ "" *^^ ^^^^n^olid- '* Whereas, by the 10rarticîe"of a T^t'Tf <'^'°°>«°ces thus : ^à the Unitid States ofAlericI nitiI?Arf T" ^^^ *^«J««^ HerMajesty and the said uSd St^tT!?; m''^* ""^ agreed^hat ^.. T ^-•^-ade,deliver.upto justice an™;^^^^^^^^^ L " "vmM ^^r ^y>, ' r »t I 276 vfith the crime of.Murder, or Assault with intent to commit Murder,. or Piracy, or Araon, or Robbery, or Forgery, or the utterance of Forged Paper within the jurisdtction of either of the high coutraot- ing parties, should seek an asylum, or be fomid within the terri- tories of the othery IJere we find that there can be no mistaking • tlie class of o^)Mer3 marked out for extradition, which, be it re- membered, the same article of the Treaty commands shall be granted " upon such évidence of criminality as according to the lâws of the place where the fugitive or person so charged should be found, would justify lus appréhension and committal for trial if the crime or offence had been there committed, and also provided that the évidence of Criminality should be heard and considered by the Judge or Magistrate issuing the warrant, when, if deemed «i^cient to sustfllu the charge, it became the duty of the Justice to certify the same to the proper executive authonty. in order that a warrant of extradition might issue." îhis, your Honor, is the only test to which the guilt of any pers^cm denjanded 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 bas offended. Who will say tiliat this is not a wise measure of protec- tion, if not of prévention, against the commission in our midst of ail or any of the foui crimes indicated in the Extradition Treaty ? Is there a law-abiding citizen in Canada who wishesfor its abrogation? I believe there is not : and yet, strange as it may appear, this in- vestigation hàs revealed. the startling fact that there are at this moment very many among us who crroneously imagine that this national convention, sq, necessary for the répression of crime, and so neodful for the protection of socicty, dépendent for its existence upon the good faith observed in its exécution by both the contracta ing parties, may upon a spécial occasion be treated with indifférence, or, in order to secure the immunity from punishment of some liighly favored crimmal, be ignored in such case altogether. In réfutation of this mistaken notion of ourduties and obligations under the Treaty, I will now read from the published opinions of cminent Jurists and distinguished sfcatesmen, a few extracts, to show their appréciation of the benefits derivable from its existence, and the rule to be observed whenever its exécution becomes the subject of demand by either of the high contractmg parties. Upon this point I refer firstly to a debate which took place in the «Bouse of Lords, in the month of February, 1842, when this Treaty was the subjectof discussion. Upon that occasion Lord Brougham said:— " He thought the interests of justice required, and the rights of good nèi^borhood required, that in the countries bordering upon ^tf t e ano the r, .aarAe Unitei Statea and Canada, and even that iir-^ 'i^ngland and m the European countries of France, HoIIand, and IH t 277 Belgium, therc ought to be laws on bôth sides givin- power under due replabons ané^safeguards to each GovernmenMoCcure ber eons who had committed offences in tfte territoiy of one and Xn nations couW mamtam the relationship which ought to exist between one cmhBed country and anothor wittout someluch power ^^''" Lord Campbell for his own part, should like to see aome gene- rdlaw enaote^ and held binding on ail states, that each 8ho7d sumnder to tho demand of the other ail persons charged ÏSh eemus offences except political; this, however, he feared w^a raie orlaw wluch ,t would be dlfficult to get ail 'nations to c^ncur Upon the same subiect, Sir Robert Peel; replying to Lord Pal- merston's speech condemning the other provisSi^ of the Treatv H. A ^«^*y P«>viding for the mutual surrender of persons £e irin tr^' '^^^i^ '^ ^ ^«««-«^^atwhen the coSries ftave a oommon boundary, the escape of crimînals by stepping over Jat boundary, ,s prejudicial to the cause of good orderf ani ink- J10US to the mterests of both countries. The reciprœal deCe3 fc;^m«T»"^ u '^""'^ *S °?^'«* "^ importance to civiSed ^ 67, p ?228 ^''''"''*'^* P(^liammtary Debates, 3rd séries, Président Tyler, in his Message communicating the Treatv to Oongress, observes :— ' The surrender to justice of persons, who having committed hgh crimes, seek an asylum in the territories of aneighbonng nation, would seem to be an act due to the cause of général justice, and properly belonging to the présent state of civi- laation and mtercourse. The British Provinces of North America SlîînJfPî"'*^'* *^°i *ï^ ^^^ ^f *^«'^"î«» by a line of several tooueand miles, and along portions of this line tié amount of popu- lation on either side is quito considérable, while the pàasa<^e oHhfe boundary ,8 alwayseasy Offenders against the law on the oije .side tjansfer themselves to the other; sometimes with great ditefeutfcv ^' th^ are brought to justice, but very often they wholîy escattë. A owiBcioumess of immunity from the pwer of a voiding justice in this TlS.i!*^?!^*'*® unprincipled and reckless to the commission of pS-1 ' *!î ^ A ^T ""P^ «^ neighborhood of the borders are Mnsequently often disturbed." (Message of Président of U. S. to House of Congress, August, 1842.) 1»^ Sïr'HÏLÎiïï"?l"r^-*^*^''nl?.* î^^%'" Im c_eie^^ Mwea speech, dehyered, l beheve, m î«45, in Jefence of ita "" provisions, refernng to the tenth article under which we are now prooeeding, spoke^f it in the foUowing terms:— « I undertake to ,:, M (j ï >. fil i- • \ 278 i^-.y * I Jw, li ■î< ■ iffc ^^-i say that the article for the extradition of Wenders (iontiMnod in thc Treaty of 1842, if thero was nothing ol8e|in the Treaty of any im- portance, has of itself beep of mûre value |o this countiy, and is of more value to the progress of civilization^l the cause of humanity, and the good understanding between naticttis, than can bo readily computed. What was the state and conc^tion of the country on the bordera and fi-ontiérs, at the time of thià Treaty ? Why, it wa« the time when the " Patriot Societiee," (ir « Hunters' Lodges " were in full opération, when companiés were formièd and officers appointed by secret associations to carry c||n the war in Canada ; and as I hâve already said, the disturbancefiTwere so fréquent and 80 threatening, that the United States Government despatched General Scott to the frontier to make a draft on New York for militia, in order to préserve the peace of the border ? Nothing but this agreement between the two govemmentS tiiat, i^ those '* Patri- ots " and « Bam bumers " went from one side to the qther to destroy their neighbors' property, trying ail the tiiiie to bring on a war^ (for that was their object,) they sliould be didivered up to be punrk8, vol. 6. p. 139.) ^ ' Vattel, speakmg of ïreâties, says : " ïhiî faith of Treaties— that firm and sincère resolution — that invariable constancy in ful- filling our engagements, of which we make profession in a Treaty, is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures; and if mankind be not wilfully déficient in their duty to themselves, infamy must ever be the portion bf him who violâtes his faith. " He who violâtes his Treaties, violâtes at ,4he same time the law of nations: for he disregards the fait a, ^f Treaties—that faith which the law of nations déclares sacred; and, so far as dépends on him, he renders it vam and ineffec ;ual. Doubly guilty, he does aninjury to his ally, he does an injuiy to ail nations, and inflicts a wound on the great society of mankiiid." On the observance and exécution of treatieZ " said a respectable .sovereign," dépends ail the security which priinces and atates hâve with respect to each other ; and no dependenc^could henceforward be placed in future conventions, if the existingjones were not to be • observed. The man who violâtes and tramplès under ifoot treaty engagements is a pubUc enemy, who saps the foundation of the pea^e and common safety of nations.— ( Vattely B. 2, cap. 25, p. 229.) Upon the same subject, Chief Justice Jay, in his day a most emment jurist, and, if I mistake not, the negociator of the treaVy k n owo as^iie^* Jay Tfeaty,^' in delivering fais charge totireGwmd Jury in the>celebrated case of Henfield, tricd in the city of Kch- ^^^i-» ^_l.,jni-w^ -i^f£^îi:-,j *\^'4 ^'- 279 inond, on tho 22nd ôf May, in tho vear 1 7q«î fi.n « • w i- .. - neutralité laws of the Uni^^d SteJ, IVrveâ - Tv^^:if '^' ., force and obligations from mutual consent and agrJement S consequently ,vhen once fairlj made and pmperly SncSd c^. : uot be altered orannuUed by one of the parties ^wJï.!,' .' and concurrence of the oLr. WiS: Ke' ^ffe^lt ^0^0" treaties aiid statutes : we niay negociate and make contracte wTt other nations, but we can neither legislate for them nor th™y for us to vacato or medify treaties at d^cretion. TreaS thereforë necessanly become the suprême law of the land. Se Vace S^s' penty, and réputation of the United Status wîn«ilîf!'PT dépend on the!; fidelity to their ^ng^etï^^aîd tei^%CÙ^ citizeti (for evcry citizen is a party to them) t^II concSTbrrv K^'^r*'-.? *H^^"*'^^«"^'-^^ Td "hà^tVheT^^^^^^ they be made with nations respectable ma imnorfa^t nr «îi™!- y^k and inçonsiderable, our^bligatirn rîi^ou/fÏÏ ^^^^^^ froxaour having pledged it, aad not from the chmcter or descri^ tion of the State or people to >vhom neither impunity i^rthe 2 of retahation cansanctifyperfidy ; foralthough^rfijymayd^^^^^^^ chastisement, yet it can never ment imitation " ^ Upon tbs branch of the case I will not dwell longer as I belinvA that your Honor s as fully sensible of the impoSe Tî our exe bS^d^S^n who^ -'^^^^ engagements, ^eUen the X tmguished men whose opinions upon this subject I hâve brieflv laid before you. But while it is our dity to give due effect to thflfJal? when ts exécution is demanded,^ S^Lf^^l^t^teS made to become in our hands an instrument of op^S^n or S justice. I wiU therefore, with the view of show&Tg Ae iusto^^f the présent apphcation, addresa myself to tL consIderS ofthe fac s ui^ which is founded in this instance the dem^d of tbp Umted States for the extradition of the prisone^ ; pr^ÏÏLg that hefore we can ijvoke the opération of the treaty, we3haye clearly, unmistakably, and in accordance with thé rules and r? .,.ZHf~^\'f^ particuUr oflFence which has caused the de- umn^ for extradition, was committed at the time and^lace ÏÏleged scSbt^X'* '' "' '' *'' '^'"" n^ti^ed ^d de- rei^wK^' and ja««t of investigation, oubli ^Z^f"^'^' that 80 soon as the report of theTe infamoua n!fîf\T°,?^5 *'^®* '^^ Ubertie8,the honor and proDertvof our neighbors, had reached the ears of the Government rfpeopL of^S^^rdlS^'^tï^'^i'^'^^"^^'^^ ^^^ « generaTouŒ of KctThat th^-" ^ mdignation heightenedV a knowledge 01 me tact that the murderers and robbera had sought a dace of n^fc o'rt'nf ^' '"^'^ ''' '^''^'^ ^^'^ !^ '- "^^ bv a SfTv i. '7-*^!- *^' «o^«rn°>ent of this country, aniiHated fc îi ""'^ of justice, and moved, as well by a desi^ to mark their abhorrenço of the crimes committed at St AlbTns S to S^aremniS 7 'f "" "''' *^^ ^^*«^ sSÎte^ oSed'th'^ STa^ „ employment of every mejg^t their d Wiann the jurisdiction of „ ir^S^beti^h:^*"^^'^ '^^^^*'^-™- -^^^^^^ :■ ■' ;s 1" ■ 'ilî:: '•m \ ■Éf'ûMâhL'^j^'à^^. ri /> ■j' M r^ -t-v/» H i'is- ^., 282 Itw, thw^oré, only n^eaaary tliat wo should advaivco ono «ton nirther, and show that t<^ hâve proved our third»and last proposi- tion, that 18, that the crimo was committed by the prisoi^rs. ïad thw, I thipk we hâve abundantly establis^ed by our having idonti- ficd two of thein, Spurr and Teavia, as the prisonprs who peïsonally robbcd Bréck, and thtLother prisoners as having aid^drassistod and concerted with. them for tliat -purpose. Upon this point I refer to 1 Wharton, Amencan Criminal I^w, page 124, wherein the law upon thw subject ,8 etated in thèse ^onls : " It is not necessary that be part^ ôhould b^ actually pre8enf,''an eye or-fear Aess of the transaction; he is m construction of law présent, aiding and abet- ^ tmg, if with the intention of giving assistance he be near e^ugh to afford it, should the occasion require. Thus, if ho be outside the house watching to prevent surpriso^r the like, whUst his companions are in tlie house committtog the felonv, such constructive pîosence )s suflScient; one who keeps guard wliile others act thus, assistbc them, 18 |n the eyos of the law. présent and responsible as if actu- ally présent. In case of sterling in a shop, if sevei^ are acting in' concert, some m the shôp and some out, and the property is stâén by one of those in tbe shop, those who are on the outside are equaUy gailty as prmcipals m the oflFence in stealing in a shop " As to what vdolence is suflScient to constitute robbery, Archbold m vol. 3 p. 418 says.: J^ The ordinarv mode, fonnerly of présent: ing a pistol 18 sufficient, so, if the robbcr assault the party in any other way under such circumstances of terror, as to c^se him to deliver up lus money or othçr property, or if there be a struggle for the Ijropôrty bofore it is taken, is sufficient." If further testimony should be reqùired, it would only be noces- sary to refer to the voluïitary statements of the prisonere, in which they admit th«ir commission of tHe crimo charged against them but, say: they, we should stand excused. Wliy ? lecause wo mfoFm^ Breck at the time we rçbbed him,.that we did so in the narae of the Confederacy. ïruly a very qonsoUng intimation. buch, youi- Honor, are the facts; and such, also, is the law upon which we rest this branch of pur case. The next considération tTat présents >taelf is: What is the duty of the Judge under thèse c" çumstance? Wo^^dyoor Honor, if tins crime hal been perpetrated m thia Province, and within the jurisdiction of this CourtrbV anvof our citizens, with such évidence of its commi&ion as we hâve laid before ypu in support of the présent charge, hesitate for a moment m committang them for trial ? I feel confident you would not ; and therefore I venture to say, that if the justice which under siînilar cirçamstenoes^fre would mete out to ourselves is not denied to the ^^llS*^lî ^^ ^ hopg Jt will P?t,;^QarJHonor can^ot^gMtà Il -I commit the pnsonére now. beTore you; to await the further action of u jSuLUt ié-iàc^&i^X SiÏ!,ja.iCili.Ajt/iîi<; 4 j''-îi.ji.Î4£^'\ 288 ■8, in which •! ^'^}(jverument, u|)o.h tho demand for thoir extradition. In ««m ^ K t5",'"®'' «f *»»« case, I will now, cite a fov authorities whioh, l'^hove, urg worthy ,of your ïlonor's attention £. ( THE bUTT OF TlfB JUl _ Sir Cornwall Lc«U puts it thwjloarlv aS cxî)licitly : In ordof ^« f!! I v"^'*"™ of «ctradition oàctuaî, tho amount of proof.a^d , thç formalit.o8rcqumKi should boiàa small aa is consiflto'oUith tho rtZlliltTf^^''^''''' '''^' y^^»" '«' thatCfidel" lm.d 1 P. '"'■^'^ govemment and in its administration of cnnunal law The assurance of that Gbvommont ought to bo tho cluef guarantee against^ abu»e. If, therefore, it claims any fugi- tive, throughthe accreditcd diplomatie channels, and gvos a rea- sonable proof that there has Un a proper in;estigation by tïo officbrs of pohco and the functionaries conducting the prçlimlnarv steges of judicatare-, and that this investigation had ledV the S !Znii i • h° ^r^ ["î ^'T*^"*" '^ «^*y «t*''« ofifence chargea agamst him, it is désirable that the extraditife should tako place, upon pro^f of .dentitjr of the party, and without any fui] inveS tion, such as a .magistrate vroul3 make for the commitment ofa pnsoner m this country. ;-• ■nTiî. ' 284 SïL5?tifn1'"""*^^- '' "' ™"«^ ^ "«* ^-™'* *« P^^- for To this the prisoner's Counsel roplied :— In Andenson's caae * and 80 in U. S vs. Palmer, 4 Curtis, page 314, Parker ia foÛ country. (Chesapeake case, Report, page 35.) The case of Metz- fameTî^i" theôthvoL New Le^al Observer, niain^nfthe ;o4dtr"s:;picb^ ''*°"^*"*^ "^"^* "^"'™^* -^- '^- - i-t I wiU now, said Mr. Deviin, call your Honor's attention to the «638 m the state of Vermont, one of the United States of America Immediately after the robbery, he fled to Canada, hopingJiKe pnsoners now before the co«r( to find a safe asylamC' F^her T'^XIS "'' P'™ï*i' *^ JW his ill-gotten booty in peTce tLll^A^ ""^ "^^? ^'^'' ^^ extradition, although, be it re- • siiijender of fugitives from justice, in existence. *he application Zrî K /^ T^ 7Ï** '? "^"«^ *»*« " *'0'»it7 of nation8,'^and Z «^n. nf .1 ' Chief Justice Reid. Tliat emfnent Judge, in tW onifn •' •'^rïw' r^^-^This right of surrender iL fo„nd^ nL^Î P™J«PJ«' *at he who has caus'ed an injury, is bound to re pair it, and he who bas infringed the laws of any country ig HabTe tïat nuS^enr' ï^'*'^ ^^ ^""^ ^'^' ' ^^ -« ««-«° Wm from tinn -^T ' ""^ ^®^'?'"? P**^®' *o his crime, we excite retalia- nav S^î^r/r/^'^ï/' Mividuals, it would be dishonorable! se^f toT. nï A f J^' ^^ *^^ '^^^^'-^y' ^« ^«"^«r "P the accu: i^t^tf^^'^ ?w !i! ^'- r'^ ^"'^^ «"^ P»»-* of the Liai com- jmct which directs that the nghts of nations as well as individuals them L'E^''^' '^ «"^ understanding main Jned^'tten ZrCCJtt'''''' -~-'*--A-^ --' n..i/y .«^: A m^rn writer (Instit. du Droit des Gens, &c., par le Gérard !îr T-* if «tommunication journalière entre deux pais limitroDhes est inévitable, et efle doit être d'autant plus favoffie J^rC fZ^^^ "^"^ ^'^ '^ qtt-elle ësflïâMrliremenyToJenu^dg- besoms réciproques et qu'elle donne par h\, lieu à des change. ■^i ('^ 285 ^ , d'ailleurs elle établit eutre les habitant* respectifs des liaisons .t : Ur J^u^^a^^^^r '"^ "^'"-"^ '-' *-'*^' «* -S'eni , Indeed, said the leamed Chief Justice Reid werfi «a f« f . mto account the opinions of modem writers on înteLtio^ kt' we would be still more stronglj fortiBed in the prindp e w1 hère' jeoted. At ail events, said the Judée, we «av safôlv l^fW at the présent day the world has becL'e enlTJte^ed In f^ tt ence of government as well as in ail the other departaenta of human knowledge, far bejond what waB k^ to thl «ilr! Z? f î W°*/"^ T^ ^" considered at least asweU uS- tood and better adapted to the rights and feelings of maSd WTmt, said th.8 eminent Judge, we hâve to détermine L^hethei" there was légal gronnd for the arrest and surrender of tiie nrisoner and we hold there was. The prisoner, said he, cornes befdl' a very différent character from that of a sub^ctTwhom p^^^^^ tion is due j« a mattor of right : he is an alien, to whom n^oSon 18 not due, ,f the King sees fit to withhold it. ' The obTe?vatk>n of ^J^'»f^nto the&ng^s territories, and my, you sMl prllctZ '' It .3 held (see Chitty on Prerog., p. 49 ; 1 Black, 000.^259-260) hat ahen fnends may lawfullj corne into the coùntr. ^iSt anv hcense or protection from the Crown; though it s^ema that ^he ■ ^™J°; ^T ^V^^'""»^'» ^^^^ and by the law of natîor.Zis a right to order them out of the countnr, or crèvent tE, fi^f^ «8 (see 1 Chitty, Cnm. law, 131 and 148, note Fal) that it îa msapa^be froin the goveming power in an^ countty ihat U haS be able to take précautions againsfc foreigiers resfding in su? country, and particularly in a country whfre foreignere are onli aaena^le to the ordinary laws. ThJ prisoner, sSSTheJudl^ came into this Province unde^ suspicioïs circuistanc^, cŒ wi h felony ; as an alien his conduit did not me^proCtE- unless he had corne wi A a fairer chanicter-and hè oS not IJ be surpnsed, nor to complain that h2 Maiesty's G?verSme„^ Bhould direct him to be taken baok io that^o^Ly wKrhe Applying, said Mr. Dîvlin, this Judgment to the case in aues should not complam, if you, one of H«.r MaieBty'a Snàam ^IL- t tb.7 80 8hMD«tuil, „„|,M. Th.t h.™g oatraged^a. Z. " ■(.., *^> 1^ li ■! 286 Jmmanlty as tliey, thè pi-isonei-s, did at St. Albans, they hâve not the nght to say, We will force ourselves into your Canadian terri- tory ; and though our guilt should involve you in war, we will still persist in demanding that you should assume ail the responsibilities of our cnmes, and, cost what it may, that you should shield us trom the penalty due to our oflFencés. This, said the leamed tounsel, is the ridiculous pretension unblushingly set up on behalf of (flie prisoners, and boldly urged upon the attention of the Court The next case to which he, Mr. Devlin, would call his Honor's attention, was the welf-known case of Muller, whose extradition was demanded by the British Government upon a charge of mur- der. The application for his surrender was investigated in the City of New York, before Mr. Commissioner Newton. In render- mg judgment, the leamed Commissioner made the followin» perti- nent remarks, which will be found at pp. 28 and 30 of the pub- lished report of the prôceedings had in that case : r A^n^ «vidence is such a& ^ould plainly requirê the commitment of Muller for trial if the offence had been committed hère, and it results that a certificate leading to his extradition, that the case may undergo an investigation in England, should be granted " And 01^ this the Commissioner, in the foUowing language, appuèd the Uw clearly applicable to that and every other case arising under the Treaty : " Having heard and carefiilly cohsidered the rotaarks made by the council for the defence I am at a loss to see after having carefuUy considered the testimony, and weighing it in my mind, that there is not sufficient évidence for me, sitting hère simply as a raagistrate, and the duty for mo being simply to détermine not whether the man is guilty or not, but whethei- tliere is sufficient " évidence to reqmre that he may bc committed, in order to afford an opportumty at the place whero the crime was committed of proving his guilt or innocence. It isi not necessary for mo to say whether I would absolutely convict the man, and sentence him to be hung, wpre that even in my provihce, but the duty I hâve to perform irsimply this : first, bas thefc been a ovime committed ' If committed, is there probable causes^ from the évidence adduced to say that the accused is the party who has committed the crime' Now it appoars to my piind clear, that looking at it in that light— in the hght of probable cause,— it is very plain that there is such cause. I do not désire to sit in judgment on this man, but I wish it were ni my power to discover any évidence in the case whereby 1 could withhold the certificate ; but I am bound to say thaMhe^ combmed circumstances, to my mind appear so clear and so-dSct that upon the question of probable cause I cannot hâve M^oubt.'' In the still mor e récent cas e for murder o n the iîa aeaa^ ^^im^^ WiBrhi^^^ltâjrmônd,^^^^^ pr^erlesiml "'IMà \ 287 a joïy on a final hearin^ oMrialfS. JS* r^r T° ,*^^ «^^ «^ am only to détermine the m, J^ni f "l®'"u. ^"^«^ *^e Treaty I questioi hère toTdedded^H ïïl P'^^'^'^.^^^se. The simple cause to justify hL t^ fj trialfl t''' "" '"®^'^°* P^^^^Io j.m8dictioi the crimeTs cSr^ed tL u*" ''''"*'^ ""'^^^ ^^hose In the case of San S nï*''^^^" committed." and others for piiicTallS t\ k"^ ^- ^^ "-"'• ^^^ P" ^l^) steamer" J. L Stv'fn fi hâve been commilted •msemJr judgesoftheQueenTl'e^cirinE^^ 1««3' *he on the question yyhethTlZcy^^f''^^^^^ Treaty, .lid not controvprf^f^ ^' ^ ^ ?^tium,,vff^ within the Chie/justioe ?^,Sm » No dS P"- "'^1' ^"^^ ^^^« ^ Lord ing the vessel savinT^V .1 ^^''^\P'^"^<^fy "Pon a charge of havmg stolen |360?n MonI?ed rï^« om' 1?' J^' ^^ ^PP."«^ *^ ^^^ ^^ discharge, said : Whon a case of this kind occurs, it becomes the duty of the Maeistrate oti due proof of the fact, to commit the fugitive, to the end^thaTa ™^ sonable time n^y be afforded for the Goverament hère to dchVei him up or for theTforeign Government ^ make the reîdsite aonH cation to the py authorities hère for his surrendeT TUsSt trme is supported equaUy by reason and authority. Fa«.; observes (B. 2, c. 6, s. 76), that to deliver up one'« owi, suhjeets to the offended State, theri to receive ju8trce,Ts pS generally observed, with respect to great crimes,'' or such Tare rnTeSa:re"s*™Zi*;ft^'"r' ""^^ ^^^" nationL AssDLi^ EeTtL^™ • "' ^l'*^f ^'^ «'^«'^ eveiywhere, at the r^^Z l h ^^«^^'g« "» the place where the crime wm com- mitted, and dehvered up to his justice. The sovereign who reSes to dehver up the guilty, renders himself, in somrZasure an <^^omphce m the tvçury, and becomes re^Lnblefor it. SèC Martem also m his Summari/ of the Lau, of Mtions Turr Sk Ste":S?\*^ -den^çustom, a crimin^ ^'rquènSy 2 back to the place where the cnme waa committed, on the reouest .ïs^rjf t£s;^^" *^ '^ ^' '^^ ---' -ti"8, is of common and indls» 0^2 "^ ^«'^'^^^ ^«>- J-^Jce ««»ce of the law of natiol ar« n r ""^'ï ^^^^ *° *I^« c^nt wiA the safetjaKmonvfft ^''^f^^' *°^ ^'^ inconsistent themischief ^ be p^eS/.^^^^^^^^^^ tte eqoity, of the wmedy ' Sev 1^ S"'?''^*^' as weU as ngbts of property, and LTomnatil ^^..T'^J^^y^iouB of the Considering Se iïeàt and ZSfw • T*^ *^® *°^ °^«i^ society. aiid the pfovincS of clT^nV'lï''^"^" ^"*^««° *^ State ffOffi one dominion to thT^ther 1 wn 'frf^^^'J of passiag ihhabitants on the resiSive f^nr l^^,-^^ impossible for the maintam a friendlv 7nT^ • f " ^ ^^^ ^ security, or to escape with IrpSy t^n: J/*^ -'^i ''^''' ^ *W«-es could fomil^^nart'ofthélaw^Vnatn:""^ '"*"'^" '"^ en^a^ it ^;il^ 'TJ^'Zlfè^aT^^^^^ '-' ' T«^* ^-ve the prisoners, and boldiv set .m». • ^^elhgerencv claimed for involves a quistionThicrther^^int-'f;?'"?"" '( ^'^ «"«"««^ clearly shows, if it hw ant J«ïf^^ / the foregoing authorities tbe posent cwe,) can oïïv Kt ''•^'^^ ^ ^'^^ *^*«^ i* ha« in of the prisoners indnotu^n a t^^^^^ '* ^'^^ *^' ^^^ *t« *^al kind. Sut, as my learaed fi^n^-r^*^*^^.'''^^^ of this fieW of int^maSZ and dtaîl^^^ ^î"'' "« «»« ^do new and foreign point ofSewZ.K *^f .^no^tion even from this the leamed oounilel laaï m» *« ^ tt»»Twnrt,the arguments of ■V' 4 'M T».: V* Ji^iôiâU^àM*. rfïr f . „-*'^ -\!.^fc, ' 290 in support of this pretension thej hâve cited, with a show of appa»^ rent seriousness, certain ¥rriters, to prove that, as what their clients did was, from their point of view, done b^ virtue of preyioosly aoqaired bellizerent rights, therefore the cnmes committed by the prisoners at St. Albans cannot be made the subjects of enquiry before the tiibunals of a neutral coontry. But tijie leamed gen- tlemen must be reminded, that before they can ittvoke the opéra- tion of international law to justify, excuse, or palliate the outrages of whieh they «re accused, they must hâve proved the existence of a certain state of facts to which their law can be applied. As, for instance, that their clients were duly commissioned by'rëcognised military authority, to commit the act complained of. That the cir- cumstwces under which it was undertaken and executed, exempted them from criminal responsibiUty, and above ail, even supposing that the prisoners were so authorized, that thev hâve not forfeited \i their belligerent character, by commencing iheir attack from a neutral and friendly territory. In the absence of such proof, it is perfectly manifest that theii* International Uiw can hâve no application ; and for this very good reason, that without it there is nothing of record to which the inge- nuity of the most skilfiil pleader can possibly make the application. I wul, therefore, as next in order, examine the évidence, such as it is, Bubnûtted by the prisoners upon thèse points, ail of which I undertake to demonstrate they bave signally fiùled to prove. The defence of the prisoners rests upon the pretended commis- sion produced b^ Bennett H. Young, which it bas been strenuously urged entitles hmi to the récognition of an oflScer in the service of the so-called Confederate States. And fîirther, that under this commission, and certain mvsterious instructions communicated to him by one C. C Clay, Young, and bis accomplices were fully lioensèd to commit ail kinds of déprédations at St. Albans, or else- wherè in the United States. This being the modest pretension of the prisoners' Oounsel, we will now see how far it is borne out by référence to the commission itself, which is in thèse words : — [^i -f \ Lieutenant Young'» Commission. CONFEDBRATB StATBS OF AmERICA, War Departmbnt, Richmond, June 16, 1864, Sir, — You are heiceby infongaed that the Président bas appointed ^^ Rret Idëûtênat, ûndef th» aetllîl ytepprortû Februiiy ITtir^ 1864, in the Provisional Army, in the service of the Confederate I r- \ V. 291 A Departmeni, th^Sgh Aî-'î^ï' f'T/ ^ «ommunicate to tins yow letter of acceptance S, 1 ♦k a^P*"'^®^*» *nd, with »nd attested, reporting at the wme tim^^n °P' «'^l>8cribed, a yoH aoc^ept,you wUl report for duty to .(S.gne tnuiictor; toTachSf YorZZ^ f ^7 «o ridiculousiy con- he did not, and for this re««^n Xî ^ ""1^® ^ *^® ^«"«f' **»«* the conviction thaT^e pr^S;] ,1 ?^ '*^°|'7 •'"Pressed with been fabricated. to mer+Kt- ^^^"""T'î ^^ mstructions hâve Bat whethÏÏ aTnSn âi^f • '^. '^ *^" P™°"«"' Po«itio°- neither the soTcXd fl^s^on n^lL? '' "'* ^^^^^'^ f^^'^' «« wnvey any authoritv to tT» 11^ * accompanying instructions, Counsel, seems to hâve 866^ faio^ n? !, ^î:^^"*™ *°^ *»»«i' ing, ho^ver. that C C n«W ' f ^T** ^^'^*- Remember- th^ inveetiStiT that k & i^' ^'^ ^^^ conspicuously in riBed, «ad Cd thf elltinn ^'ï ''l.'Tiu*"^'^' P'^"«d' '^'^tho- the crimes coSd at ^^1^. °.' J^.authority to sanction ft^m Canada ^'^'^' *°^ *° ^««"e "iKtary orders hialettorto-YQaaff ;-_- ''' : * ; ,^« ^ kiîl m}î% Sf\.'i.Jfv.'t'. ; "y' IV- t \ \ '\ 294 PAPER p. Mem. for Lieut. Bennet Young, G. S. A. Your report of your doinga, under jour instructions of 16th Juno last from tne Secretary of War, covering the listof twentv Confede- rate soldiers who are escàpediprisonerS) collected and enrolled bj jou under those instructions, is received. Your suggestioos for a raid ûpon accessible towns in Vermont, commencing with St. Albans, is approved, and you are autherised and required to act in cot^ormity with that 8uggesti(m.< October 6, 1864. C. C. CLAY, JUN. Commissioner, Ç. S. A. Now, I think it may be ftùrly asked, who is this C. C. Clay, who has arro^ted to himself such cxtraordinary powers in a neutral territory : George N. Sander^ in his évidence, says : I know Mr. C. C. Clay, whose name is suWribed to document P. He was then exercising the authority of a Ctonfederate agent, claiming full ambasaadorial powerè, a» weîl civil a% military. I had seyeral <;x)nver8ations with Mr. Clay about the St. Albans raid. He informed me that he directed the raid, and gave the order for it — the St. Albans raid — and Bennett H. Young was idstructedjby him to carry it out. Mr. Clay told me about the eighth day of ij^cemberlast, a few'dâys before he left, that he would leave such a letter as tiie paper writing marked P, and whioh I infer had not been written up to that time. The letter which he said he would write on that oc- casion was a letter assuming ail the responsibility of the St. Albans raid, for which he was responsible. Now, if we are to believe Sanders, ancLi know of no reason why we should disbçUeve his testimony .upo^ this point, the prisoneis had only the verbal authority of C. C. Cwy, for their doings at St. Albans, upon the 19th of Octobeà. The iptter, or mémorandum, as it is called, bearing date 6th October last, was undoubtedly written after the prisoners' visit ta St. Albans, and in the mondi of December,.a day ox two before C. C. Clay withdrew himself fre||^ Canada. But tms, again, is of little conseq\ience j for it is to be hop^F that the assumed authority in Canada of a io^diêani Southern rebel agent, will not be permitted to ovei*ride ourHwn laws, to nullify car treaties, and to imperil our fnendly relations with the United States. Besides, Clay, of ail others is leà^ entitled at our hands to firiendly récognition. It is in évidence, that from the moment he set foot in this Province, he disre^arded our neutrality laws, which, so long him as ôfWm. î I u ■ i f '■',;«! «S:^ ; ■ - M ^ay for instructions, was, 4^t after a consultation I had^Ui the CouDsel for the defence, it was decided not to ^uce it^beciL it nught mvolve Clay in a breach of the neutraUty laws " Another paper, omitting the ytotûs proceed to the Briti»h Pro r,«ç«, was therefore, substituted ; a proceeding, which sh^^^ dextenty of the piasoners fri(^nds in maïufacturing évidence tTmSt th? requnrements of their ca8e. Is it not, however, stran^X Clay who (accordmg to Mr. Sanders) claims t^ e3e in Canada fuU ambassadorial pokers, civil as weU as ^x^TCZ made his appearance at anv tbie during this investigSn v ^s Buredly rfhe is clothed, as Sanders tells u?, with such SiZer imd auAonty, his évidence might hâve beenofsome impoiW to Se pnsoners. At ^ rate, it womd hâve been inteŒg to verv many, no doubt, to be affordejl an opportunity of seeing^the TA Z^f^f """^ ''t^ ever WastTham^ within hfr Wde" But the fa«t 18, your Honor, Cla^ dared not appear. And as à proof of t^ we find, that in ordeî to screen his^^TguaT and i^ save hunaelf from punishment, he hae todfrom CanIdafÏÏdnïwi& the moneysstolenbythôprisoners from the people of St. Albans And &dCt!/f -"Yf *^ conspirator'l^t the laW tîe Kll? i^ \ ^u*^* P*^®' *«°^*7 "^^ ^êlfare of Canada : he, who had not even the courage to sttod by his friends and accom phces m their hour of trial, that^is set up as a justificZn^?r sî AJbaM outrages, and for which ju^ciS récognition is dema^ded .^ from this Court. I beheve, however, that your Honor will not Banotion^uch a montrons proposition for a moment-one utteX v abhorrent toeyeiy idea of justice, and one which, I hesitate nS to jay, if entertamed by the people 'of this Province, . wiU, I vrrily wl^! ï^r^"?' *°î j"'*'^ «^' ^y *^« United States' as S ^untto a déclaration ofwaragainstthem. I sav iustlv so SjT S^em'^r ^f^"«rr P~. it mustt*&^'^' them aaJ>eUigerents, and the cnmes imputed to them at St. AllSns as so many acte of le^timate warfore."^ Now, considering ^e riJl «n3^*£f "7?** '* T T"""^^ "^ Canada,iuid started Lm Camida. '^aVL Si ^H' '''V' ^ ""^P^^ *^»* ^^^ récognition ^d gudidaljancbon of such an atarocious outrage should «cite thé indignation •oftiiéi>eople of the IJnitod States, and Muce them to _iook upon u s as their enemie a ? lil °l ^^^ ^^Confederate authorities bave pointedly '®^""P1PKS^ ** thopfitfcry katm claimed for the prisonere, sjipplj?^ wlFby the subititution of your sanction for their autho- jrity ? ï eamest l y hope yo» wàll not pkce youiself^n «leb i^ Tkii snoE I': '; viable position, a position whic|i I take, the liberty of saying would «:fli!*«%- i,_--.- ,f / 297 b» dâhonoring to the high chawcter of the judiciary, and ex- totjjey PmAmU to the beat urtorests of the Uv^oî Sntï rfïulS^ïW ***, United Statea, and wju» the.further objoct LTffir* .7 "^* '^'^^ ^^^^ '^^'y» "^"^ <*'«• Jhterost, if ve wiah to ^»*.«p«f# ^.oureèlves a oontinùance of the blesàngs of peaoe. to Z^JJ^ impartiaUty in m pending feonffict, anî net to pr one.of the opnteudmg parties to the injury of the othor. DUTY OF NBUTRALS.. , x .iwif/^^^i/'*^' "i **'" °^*'«® *^ *^e «"«d Jury, in tho onao of Wenfield, (Reported in Wharton', Eept.. of State ÎWaH! States, made the followmg seiisible remarks, which I quote, m Z TtÏL/q? * "^*^* "^""^«^ ^^=-" ^y *he laws of naUons, Se^?^ttft^'''J^ ? r?*^. P«^«^' are^ound to observe ttio tew^lTïrV'iî?'"***** ^y*" proclamation of the Président towMds aU the beUigerent powers, and that although we may havo no treabes ^A them. Surely (said he) no enga^mentecan Je ^Z^t^ preBerve large portions of the h Jan race froTïe Sif5 '"^^^ "*''^'^*. *° ^«^--^While the people of othïr nations do no violence or injustice to onr oitizens, it woïdd certai^nlv be cnnunal and wicked In our citizens, for the toke^of pCdw to do violence and injustice to any of them. ^ ' theJe^wï/llT- ®î?^' ^'^y**^ '"^•^^"*«' *«»^«t foreign nàtioûs, Sil^ * *^* "* î\'*'°*' """""«"^ to you, and instetd of tha w« ;S^M **'"°"?u- ^^'^ °'^*'^^« ^'^ esteilished between ail men 3Jî!Klr® f *^"*« ''°* *'''« "**^on robbing another. The respect ^.«r^îï -îf ?°'' *'!'®? *° ****'^ ™I^«» » <*"ty on its Government, cause ail its laws to be reapected and obeyed, and that notonlv ^ite proper citizens, but also by those strangéw vho may visit and S"r^î,T^V**f ite territories. îhere is no^^ciple better estabhshed tlmn that ail strangere admitted into a couniïy aw donng their résidence, sttbject to the laws of it ; hence it foUows ^^esubjectBof beUigerent powers arebouid, whUe iï the oountry, to respect the nevtrality of it." no i^d^«Ti -î" *^ ^ ^^ *^* P^^"" ^^ ^ ^ St. Albans answers no, and well it may so answer. and '^J^A î^r*®^ ^'f^I'^ "^"^ oontemplate with anidety and regr et the dewdatioa a ad distreiM whji>h a war bo genorol TJwiraBthen bemg oanied on between Austria, Prussia, sSS. GlreatBntain and the United Ne&erlands of the one -pMtTM ^M^Âi^A^^sa^^'S' s. ^x**-^^¥- '■> /" .■ :. 1'. ^H.i r n. ■ :.k... , :,;■ ^mÛ K :| ./i :iJa uÙ^ jUp -■=^ * :■•, 298 ■? , ;;■■ ; « '.r ■■*! France of the other) and so inflamed will probably spread orer more than one country, let us with becoming gratitude wiaely estimate and cherish the peace, libertj, and safety with which the Divine Providence bas been pleased so liberally to bless xis. Self- preservation is a primary duty of a state as well as of an individual. To love and to deserve an honest famé, is anothër duly of a state as well aa of a man. To a state as well as to a man, réputation i» -a valuable and an agreeable possession. But with war and rumors of war, our ears, m tiiis imperfect state of things, are still assûled. " Into this unnt^ral state ought a nation to suffer herself -to bo drawn without her own act, or the act of him, or them, to whom for , the purpose she bas delegated her power ? " " Into thisunnatural state should a nation suffer herself jt» be drawn by the unauthonzed, nay, by the unlicensed condûct of her citizens ? '» " Humanity and reason, says Vjattel,aa.j no." In the case of Talbot r«. Janson, fôr a breach of neutrality law, (1 CuHi8* Eepts. of Décision in the "Sup. C. of the Û. S., p. iséy-^ Judge Patterson said: — " The United States are heutral in the présent war ; they take no part in it ; remahi common friends to ail the belligerent powers, not favoring the arms of one to the détri- ment of the others. An exact impartialily must mark their cônduct toward^he parties at war, for if they favor, they favor one to the injury of the other. It would be a departure from pacifie principles, and indicative of a hostile disposition. It would be a fraudulent neu- trality." At (p. XB6) he says ; — " The principle deducible from the law of nations is plain ; you ahall not make iiae of our neutral arm to capture vessela of yodr enemies^ but of ouR frimds. If you do, and hring the eaptured vends within our JuriadiHion, reêtitution will he awarded. Both the powers in the présent instance, though enemies to each other, are friends of the United States, whose citizens ought to préserve a neutral attitude, and ehould not assist either party in their hostile opération." PhiUimore (V. 1, 2, p. 189) says : « A RebelUon or a civil commotion, it may happen, agitâtes a nation ; while the authorities are engaged in repressing it, bands of rebels pass the frontier, Bhelter themselves under the protection of the coterminous State, and from thenoe, with restored strength and fresh appliances, renew their invasions fipom the State in which l^ey hâve escaped. The invaded States remonstrate^ The remonatrance, whether from favor to the rebels, or feebleness of the «xecutive, is unheeded, or at least, the evH complained of, remains unredressed. ^ ^ this stote of things, the invaded Stat e is warranted by inter- nàl^nâ law in erotting ihe fnmtier, wA in taking <« n«ff«Ma»y meoMforhtr »qfety^ vfhetker iheu be tke capture or ditpertwn of V* I» ■'S 299 *^ *'eiel9, or the deitruction of their kfrM,n7,^i^ ii cfihe cme mayfairly re^re '^'^^^Md, as the exnffencies the two Statef in w iH^^^^^ ^^ °^ ^fetion, and Wolve or necfAfl éliû cl,^.,«-a- lZ "«"i^uëf > ana, u tnat is refused 5^^j£ «Se oTh^;'^^ «&S place within the jurisdi^tional limita of pacifif SoverSs wSkJv ■ tCn „ni. r 1 i • P"^®* ""^^ ""^«ï" suck circumstances are then udawful, and g,ve to the neutral the richt of daiSr froî^ een'c'oSS^^-'^'^*'^" acts,^.reparSl, a^^TSfytS \ Ai«ri?.rr''°® °/ **^* ^»y^S i»» '^ait at Southamp^on, bj an I thmk it necessary to state^^to you, that, except b ^ of S \ \'^ ^••*"\ I -V H fcj; il' 300 of weather forcing them to land, Her Majesty'B Govemment cannot permit armed mm in the service ofaforeign Govemment to land upon Br^ish Territorv, (Ibid., page 721.) There is then no exception t© the rule, thatlvery vojuntary entrance into neutral temtory, with hostile purposes, is absolutely unlawful. " When the fact 18 eatablished," saya Sir W. Scott, it overrules every other considération. A capture made under such circumstances, is done away ; the property must be restored, notwithstanding that it may actuaUy belong t» the enemy. (/Wd., page 727.>, It is a settled pnnciple of the law of nations, that no belligerént can richtfullv make use of the territory of a neutral State for belligerént pur- poses, without the consent of the neutral Government.'' VattelÇi. 3, c. 7, p. 344,) says : It is certain that if my nei M 802 and that of the prisoners now before this Court, that Mr. Davis ■avowed Burley 8 deed andrefused to give a like récognition to the acts of Bennett H. Yonne and his accompUces. But then the soundness the legahty of dus judgment hâve been questioned bv ray leamed fnends on the other «de. Indeed one of them has , carned his cnticism to the extrême length of sayina;, that the judgment 18 a dwgrace to the judiciary of Upper Cj^ala, and is a proof of the unfitness of the Judges in that section of the countrv to deal with questions of international law ! ! Perhaps this is the opmion of the gentleman who has denounced in such strona vituperative tenns the Chief Justice and his brother Judges. But certainly it is not the opinion of the eminent writers upon interna- tional law, from whose page^ bave read, nor will it, I trust, be the opmion of your Honor. I admit, however, that the leamed Judges whose judgment has provoked so muchwrath, committed an unnar- donableerror m adjudging Burley's case, without consulting my leamed fnends, whom I am sure«would bave felt great pleasiSe in indoctnnatmg theu- Honors with ideas of international law as Mderstood by Jeff. Davis, and praiîtised by raiders generally. Believmg, however, that the Bencl of Upper Canada w§l not 6e deterred from pursumg the path of rectitude, by the beUigerent observations of my learned friend, and that it is quite possible he might be mduced to look upon them with more favor, ifhe heard the reasons oftheir judgment once more, I will now read a few extracts from the nubLshed report of their décision, which, notwith- standmg ail Ihat bas been said to the contrarv, I still ^rsist in commendmg to the carefiil attention of the prisiner's couALi. But, _ said Chirf Justice Draper, « conceding that there is évidence that the pnsoner was an officer in the Confederate service, and that he had the sanction of those who employed him to endeavor to capture the Mehigan.mà to release the prisoners on Johnson s Mand, the mamfesto put forward as a shield to protect the pnsoner from personal responsibUity does not extend to what he bas actuaUy done-nay more, it absolutely prohibits a violation of neutral temtoiy or of any ri^ts of neutrals. The pnsoner, how- ever, who accordmg to the testimony, was a leader in m expédition, embarked sun-eptitaously from a neutral territoiy. His fJSowers with their weapons, found him within that territory, and proceeded îw^r.Jr'î?*?* ?Sf ^^-^terprise, whatever 'it wa8,*^into the temto^ of the Umted States. Thus, assuming their intentions to hâve been what was professed, they deprived the expédition of the character of lawful hostility, anâ the very comTncement Z. embarkation of their eùterpnse was a violation of neutral territory . aBi«<»trary to ^e letterwdtiieiçirit of tiie înanaeBto producS: This gives a greater reason for carefully enquiring whether, looking 303 forward as a pretextto cloak very différent deïigns. Taken by thernselves, the acte of the prisoner himself . cleîriy establiah a prima facteciae of robbery mth violence-at leàst accorda to our law. The matters aUeged to deprive the priaoner's acts of thi» cnmmal character are necessarily to be set up byway of defence to the charge, and involve the admission that the prisoner committed the acts, but denying theu- cnminality. AssunSng some act done withm our junsdictaon, wbch,unexpkined, would amountto robbery'; it explanations were offered, and évidence to support them were given at a prehminary investigation, the accused could not be discharged^the case must be submitted to a jury. This case cannot, from its very nature, be investigated before our tribunals, for the act was committed withm the jurisdiction of the United States. Whether those facts are necessary^to rebut thè prima faeu case can be oroved, can only be determined by the courts of that country. We are bound to assume that they mil try and décide it justly. "^ •' I do not, on the whole, think the prisoner is entitled to be di»- •barged. I should add, that, considering the nature of the questions to be determmed, I requested the leamed Chief Justice of the Common Pleas, and my brothers Hagarty and John Wilson, who were lill at the moment, within reach, to sit with me and aid me with their ommon. I am sustained by their concurrence in the conclusion at wnich 1 hâve amved. ' Chief Justice Bichards—'^ Taking the évidence adduced against the pnsoner, there seema to bave been sufficient to warrant hi* 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 décide whether I would discharge the prisoner or commit him for tnal,! should feel bound to commit him. I should sav that lookmg at ail the facts as they we presenfed on either side the conduct of those parties, and what they said and did durine the tune the vessel was in their possession, was of that equivocal character, that it would, m the most favorable view suggested for the pnsoner, be a matter for the considération of a jury, whether- they were actmg in good faith in carrying out a belligerent enter- prwe, or whether they were not making an expédition for the pur- pose of plunder, under pretonce of a. belligerent enterprise, thmk- ing in that way more readily to escape détection. \ " Entertainmg the o pi nion I hâve expreaacdj it i^ my dute to ^oeolare thàt t^e leamed Recorder was warranted in deciS to commit the pnsoner for the purpose of being surrendered. As i k\ g$^X^àMi¥^L'A^%ii-^li!'à\'4J^[*Lpj:^. 4}f r .. M , 1 304 long as the Extradiripn Treatv beCWeen thia country and the United States is in force, it ought to be honestly camed out, wid in ail cases where the évidence shows that an offence had been committed, though there may be conflicting évidence aa to the facts, or différent conclusions drawn from the fkcts, yet in thoso cases where we would commit for trial, m similar cases in this country, we are equall^ bound to commit tp be surrendered for trial under the Treaty, and our Statute passed to carry it out. Wo must assume that parties wiD hâve a fair trial idfber their aurrender or we ought not to deliver them up at ail, or to hâve agiîBed to do 80." ' Justice Hagariy—'-'l think the only just course open to a Cana- dian Court is to décline accepting either the prisoner's statement or his alleged émplojjrer's avowal of his acts, as conclusive évidence of the proposition thaï his conduct was war and not robbery. It should accept the évidence offered as establishing a prima fade case of guilt suflScient to place thq prisoner on his trial, and ail for his defence. The whole burderi of proving that the transferring of the money from Ashltj'a pocket to that of the prisoner and his friend, does not bear the complexion that men of plain understand- ing must, under the circumstances, attributs 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 libéral and just spirit, not laboring with eager aatuteness to find flaws or doubtful meanings in its words, or in those of the légal forms required for carrying it into effect. We ase to regard its avowed objoct, — the allowing of each country to bring to. trial ail prisoners charged with the expressed offences. Neither of the parties can properly hâve any désire 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- plaJned 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 rpbbery, leaving him to plead his bellige- rent position at his trial /or what it was worth. I hâve neither the désire nor the right to assume that he «ill not be fairly tried in the United States. ïhe 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 warrapt, which I think is not open to any valid objection. Had I differed from the resuit arrived at by the Recorder, I should then hâve to çonsider a doubt more than once expressed, whetheranyjudge can review his décision." ' ( A fte r reoiting4h&iagts^Mr. Justice W%Utpermit,VAth?sKftL"^*" civilka^ST We »^ftt)miU«mT>torS«« ^S o£ warhke opeiAÉiSs or Aa Ml» be talrAn m/ioi. _L_A . . », fti "*.) A ^ yytiisa "i^ntî. *f&' .i « ' II t ll'i if! ^ 306 reasons, I think the prisoner must be remanded on the warrant of the lea^ed Recorder." And for the same reaaons 86 aiso shoold the prisoners hère bc remanded, unless it can be made to appear that we hâve one sot of neutrality lawa for Ùpper Canada, and ^other and a totallv dis- tinct set for Lower Canada. But as this is not pretend'ed, the judgment in the Burley case disposes of the question at issue liere, unless indeed jour Honor, like tiie prisoners counsel, should be of opinion thatyour brother Judges,— dwtinguished as they undoubtedly are for judicial attainments of Âe highest character, — ^have in the Burley matter misundeistood the law, misapplied the facts, and evidenced gross ignorance of our intematiraial relations, a con- clusion which assuredly does not flow from the promises. With thèse remarks on the Burley case, I will now address my- self to another point raised by the msoners' counsel, which I un- dertdte to réfute by incontrovej^lle authorilîy, namely, that the prisoners bemg citizens of the Southern States, had, by the laws of war, a right to regard the citizens 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 hâve a right to employ ail sorts of means. « A strangc maxim r CVattel, B. 3, c. 8, p. 357,) " but happUv exploded by the bare ideas of honor, confused and mdefinite as they are. In ^»t ^^ we ought to observe, even in Z ^^f /** "".«ieratiou which "^*^ceft^ -^-^e^^e trytrunt^"' "^ "«^« - -n-rtht;ffiir^^^^^^^^ of pnnisbing <^« ^(^ "t^"*,' P- '•) " Tkus, for ■ ' '-il ' If Jï.uï. M I. I >'i I f'. i 808 BtructionXand a belligerent is bound to confine himsetf to thoac modes whi*h\he common practice of mankind bas employed, and to relinquWr thoso whioh Ûie Bame' practice bas not brou^t within the ordinary exercise of war, however sanctioned.by ite principlea and purposes. (IWrf., p. 688.) No use efforce is lawful, except 80 far as it i? neoessarjr. A belligerent bas tbetefoïe no rigbt to ta^e away tbè lives of those subjects of tbe eneipy whom be oan sobdue by other means. Tbose wbo are actually in arma, and wbo continue to resisl;; mav be lawfully killed ; but the inbabi- - ^ ; tants of the enemy's country..w}io are not in arma may not be slaio, ^) because tbeir destruction is not necessarv for obtaming the ju8t«* ,tH ends of the war. [Was the asàwsination of Morison at St. Albans b/ j the prisoners necessarv for tbis purpose ?] (Wheaton, pp. 591 to '\^ . 604.) AU the membets of the enemy's State mav lawMy be treated as enemies in a public war ; but it'does not, therefore, fol- low that ail thèse enepies may be lawfully treated alike. No use of force against aii enemy is lawful unless it is necessary to accom- plish tbe purposes ôf the wai*. The persons of tbe Sovereign and bis family, the members of the civil govemment, woo»r and child- ren, cultivators of the eartb, artizans, laborers, mercSâmtê-, men of science and letters, andi generally ail other public or private indi- viduals engaged in the ordinary civjl pursuits oflife, are, by the custom of civilized nations, founded upon tbe forégoing principle, , exempted from the direct effect of nùlitary opérations, unless actually taken in arma, or guilty of sfflne miscohduct in violation of the usages of war, by which they forfeit tbeir immunity. Private » property on land is aJso exempt from confiscation, with the exception of such as may become booty in spécial cases, when taken from enemies in the field (iWi., p. 626). The effect of a state of war lawfully declared to exist is to place ail the subjects of each belli- gerent power in a state of mutual hostility. But the usage of nations bas modified this maxim, by legdizing sueh acts of hostility only a» are committed hf thoie who are authorized by the express or implied eommand of the state. Such are the regularly com- missioned naval and military forcés of the nation. The horrors of war would indeed be greatly aggravated if every indiyiduarof the belligerent states was allowed to plunder and slay indiscriminately the enemy's subjects, without being in any iffanne» accountable for hii conduct. Hence it is that in Iwad wars irre^ar banda of marauders are liable to be treated as lawless banditti, not entitied to the prôteetion of the nùtigated usages of war as practised by civilized naticmâ." *'' War (S PluUimore, p. 100,). is not to be considered as an m idttigenee ^ bHnd^^iKt;;^.f,vV>Lis' /■ •>saJ g 809 tenition of^e war Th« î "'^"""^ prosecution and speedy decid«#m tl,.^rf^ WM*re. In the cage of Taliot »». Janim veré ahv»w^^ ; , confesa the firat biaa of my mind waa ^eiy strong m fam of the opinion that though the insSonsTf ■ i' 'j ■;' Il «il •".'•''i . ' ■< fl - ', ' t ■M _iyemment. The Caroline was destroyed hx I^ember, 1887, and fi^m the published acooimts of aie transaction^»w# gather, that after the ré- bellion whi ch, durin^ ÛaA year Iwçi brèten ont, had been s uppres- ^sedï s> nmik&iHkttdDf €a&adiaa reâigeii, who had trftro shdter ia il 1 ij-: fk 'ii%â 1 ^ ■.<;»•: J 811 tory, pot to joîn a party eZ^ï^i^ w^^i? ^^ ^"."'* *«"i- that tîme in CttxM^Ttiire^l!^ ""V r^'^l>«c»ufle civil war at Britiah territofy the Se " SC o * "" '*"**i *° «°°»°it within some daya' DrenamHnn rt^^ wbbeiy, areon, and murder. Aftar of the ice in wto S/An enol^'"^,,'*'^''* ^" «Sfat thej had used her for thi pur^ JîtST-"'- *^* ^"^ °^ B» ^avy Island and promions. In C0MeanT«^7'pT' *™"' ««munitioS, bCs anthîrities ^tationedTSî fbLe 1? ^K^'^^^^^^' *^« ««^«^ threatened invasion, andTdSnd Z. V'ÎC''*' **' '«P*^ «»« conunander of that^ Lw^L?!^ MajesÇr'a territoiyV The means qfmpplvamiJZ^^ fî. *^! (^^'«'otine was uwd as a pied NÙT&yX^ZtZt^'^ ^Tîf"' ^^^ ^-d "ou- veesel woJld pwvjKÏÏlJf J5' '^^r*^ *°^ destruction of that to the Island and wS'^ïf remforcements from passin» over of the metL^^4BSSv^^Z' b'^^^^ land. AccordinX^5Z2th^fS''"\*'"??'7*°«»«°»ain. of seven smaD bdte înd «î^k ^°®'^^"' 1^^^' «^ expédition conunand of Her Mainaf^'a V ^<'^«>, (who was lawfiJlyin vested with fiSlfit to i ^^ a *^" ^'"^ "«^«^ P^^'e. "d steamboatby forcrwhTrEîr ? ^^ «"d commanded to tate thé «Ud . Bythi8expSn'I^SM.T '^^ captured iod d?sCId ÏJ? .^^ T"" ^"«"S^' Ht' i '• ' 1"^ Î '4 ■kir ,at ■' : t: '•■il I';! I. 312 thia avowal of the transaction, as a jpublic transactioA, auihorized and undertaken \>y the Britiah authonties, individuals coneemed in it ought not, by the jirinciplea of t)ablic law, and the gênerai usage of ciyilized states, to be holden perSonally responmble in the ordin- ary tribunals of law, for their participation in it; and the Président présumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs, by pubbc means, cannot désire the puiushment of individuals, when the act complained of is declared to hare been an act of the Government itself." Aâer this correspondence, an application wto made fi>r the release of McLeod, supported by the l»ir officers of the Government of l^e United States ; but, Juage Cowen, to whom it was made, refosed it, upon the ground, that the avowal of McLeod's aot by the British Government, did not, and could n^t, legalixe thàt which according to his views was a crime, before its avoiral. He held, moreover, that, an iudictment fâc murder having been retumed against McLeod, the Court could not by the récognition of the Bri- tish Government of his (McLeod's) deeds, be onsted of its jurisdic- tion to try the offence. McLeod was therefore brought to tnal, and, after a full hearing of the case, acquitted. Subsequentiy the opinion of Judge Oowen was reyiewed bï Judge Tallmadge, (z6, Wenddl, p. 66S,) who held that' as the Britisbi Government had not only approved, but ordered the destruction of the Caroline, during whiou Durfee was killed, McLeod was not individually answenible for the conséquences resulting therefrom. From the moment that it was sanctioned and avowed by England, it becaiue a national ques- tion, and one to be determined, not in the ordinary munidpal tri- bunals of the States ; but in the high political Courts of Washing- ton and St. James. Where then is the analogj^ between this case and that of Toung and his accomj^ces? MeLékod, in obédience to the oommand of his superior offioer, performed, a soldierly act, one which was déemed necessary for the defence'qf^ûs country, and which was approved by his Sover^n ; whereas xbung and lus aÉociates, without any authority, pemrmed the very contrarv <^ a mititaiy act -^ one which no man with any regard for tnith can prétend was justified by tke laws of self-defence or self-preservation. McLeod aided in Hhe destruction of a steamer, employed in oanying aid to the invar ders of his countatr ; Young and his party devoted themselves V> the robbery and murder of private citizens. And yet we are told tivat there is great analogy between both aots — the capture of th* Gainh lifUi an d the raid at St. Albans. If there is, I am oomp^ed to "say, I do not seè Q»e resemblMicê. " So far your Honor will hâve perceived that I hâve argued the : -ti^ss. , .^ 313 > «B. Mr. Laflamme, itTtAe itd^! t^^^î""^ °"*«*« t>«fore that two new and ii^wiLt ft^J, « ^^ t^^^^ «^ yesterday, Honor's iUness-A^ffîlal*! Tf ïr^^i^^dit since yoS upon the officeraSd ÏÏ^w of the ^^^^^^ '^// P"™°°« ^^° ^^ sel. Well, mv MBWArJfi,- '«'^oke, and destroyed that ves- Adama, that there wm nnf t^ • . -T®" ^^^ ^ reply to Mr complained ofT^d Stt S^S^ ? ^^°^^*^ '^«t^ *&« P^r^ dalycommissiônedandenHfS* 1''°""'^^®' <>f*e paiK wm Beâdes^Sr^Twaï 1 1^^^^^^ the recog^tion of a belIigW In addition towhlh î LTJS*^!*?" ^*« °^>«* P«^ate pOlage wide «.otion made betïtrZd-*^' gentleman tt the^ if a -bet^een the Si of SlT''"l7'f^^ ^? ^«^ "Po^land it on land. Thel^^ln.. property at sea, a^d the tSing of ligerente, when ^ the^^e^^r^"^^^ Ï«H*^ ^^' ^«^d, f el- Privilege^. meaZ r^S^^ ®*i'^ ^^î'' ^*^^ «^««J righto and -" The progre^ of dSiS2;^n «f aki^g of maritiie^warf^e, aa^: to Boften the^^l'^st^t^h'''^^^ lî^* °^^**"% *^°^d bat it 8tiU renS^iIl"y .^'^ *^® opérations of war by land : which thepriX^pZ^ofS/^'P^^* to maritime y^^T^]^ port, iB mdlcriXSKble to o!;r^ ^''^ '^^Z^* ^«^ ^a^ai in ineqnaHty in the opewtioi^f fh^i''*P*T *^^ confiscation. This bas been justifiTKeli S' ^""^ ^'^^7*'' ^? ï«>»d and by se^ perty, whin ÏÏSi^d in dSl^t'^T ? ««^^^«ring prfvate prï- the object of mSe wSÏi! ^'^ «'^stormas boot?.*^ WherSj^ merce and naviSn rt.f^ destaTiction of the enemy's oom which objecrcXly'bt atS'rtr ^! '^ ^^ ^'^^ ^oZ, ofprivatiprtJrty. ****'°«^ V thé capture and confiscation fi «^inal int*ntrAr4*didït 8^ Ari*^' Pngoners jud th« absurd and preDosterou» Swîl ^tv-*"»"»- Now, of ail ntead dobcsoT S S i i^ ^''^ "^^^^^ ^«^^ they did ^tter? ShaU iTEhi^' fc^L^' J^^^ 'If'V ' I'' '¥: ^ # 314 cape with their plunder, that they did not know what they were about ? Qan it be believed that when Young and his partj mardered Morrison, shot Huntingdon, and wounded several other citizena of St. Albans, they had no criminal intent? Truly, it is painfiil 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 would seem as if we met hère to waste time, and, as I hâve before stated, to trifle with, instead of honestly to fulfil, our Treaty engagements. Young and his accomplices had no criminal intent m their St. Albans ope- rations ! If tttis be true, whv is it that up to this hour they hâve not made restitution ? What hâve they done with the stolen money ? If they are the honest, upright men ueir Counsel represent 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. Fifky 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 robber^, taken from Bennett H. Young & Co., in this Province, and subsequently, by an act of fi»ud, re- stored to them — is rather too much to pay for the honor of theb ac- quaintance. No writer, says Mr. Laflamme, bas yet ventured to say that the prisoners should be extradited, by reason of the crimes charged a^inst them. Again, I sav, he is mistaken. With very few exceptions, every newspaper published upon this and the other side of the Atlantic, bas denounced the savage deeds of his clients. For instance, the London Pott (Government organ, Dec. 29), in a lengthy article upon the subject, swrs :— " That thèse "raiders" really corne toitMn the terma of the Extradition Treaty, there can, we coneeive, be no manner of doubt ; 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 déprédations. Sudi a pretence will not hold for a moment. The Fédérais,, indeed, quite as much as ourselves, hâve reoognized. the Confederates to be belligerents, and they bave invariabfyao- knowledged them to be entitied to the rights of war as against the Fedends tiiemselves ; hxO, war it ordy war when U it waged either from the open tea, or from tcrritory htlonging to the attaoking btU ligerentt. If, in the course of the récent Danish war, Prussians had seoreted themselves on the shoree of Norfolk with the view of maUng an attack npon Jutland ; or, vice verta, Danes had raoposed an attack upon Prusdan seaports from Yarmouth or Hall, we should oertainly hâve afrested them without any spécial treaty of extradi tion."^ jjondffn Newa raid, says :— " We are Dbo.7, reterrtng tô tfe ^. Albanie lund to abow the example of doing as w«t '^t 315 .till *<« bHliflSe ;S w.il^S."' '"^ ' "^.""^^ ^ worda • « W^ „ T ^. Çonduct has been expressed m thèse tain the tranaSf^ «? ♦? T _J ^'^^J'* executive meaaures to mam- Stïî iî^ff ^ ,*^® *^'^*"' **7 *teir own poUce and by the Ing S enomouf e^^tr^^ii'^i,'"™'" complications, mvolv- moi^oIh!d to ffL ♦? r*^"?* .expéditions, which they am vice sr^^^^ i«?wyrW«u «»TBr give a free and lafÀ «}.«U«,. ^^ ^KJZrrsTT 1; ! Ml rw n»y De tlieir pnnciplos or their cooÈtry, but the fiwt dut^ Iv 1 *1 T ' , .sCf.i l-t'i ^■sSs^îSfe4*Awlf Î^^S^r^K**' "" S' ''r'^ '^^"^'^ *« ^ beUigerents a^d ÎT* 1 ***xu*®y murdered and robbed the good people of Montréal m the name of rebelKous Ireland, ail lirtherenL^ Stn^^L*^.' Treatyneverhaving contemplated the pi^veS of such gallant and patnotio achievements. Would we, I ask rest ^CS^' '*«*'? '"*ï abhorrence, nay, mth the most profoind ZW\^* P*^f !. *?^ *" ^^«•^'y <>f *« «o»"*^ who enter- . KZnn^'^'iï^ "^Tr^^ °*îi'''** obligationa-w^ sanctioned Sî SSf T '"***^^ ' ^ ''^"*** also beg to remind your Honor ^altiiough vou Jiave suprême control over this apJUcation for Igg'^- It my be uwid, imd4 M i ^_.»p Mm»wH» y « w, m w^w J«Jg« of Cpaa^ are removed ftr abovè and beyond âu Govern- ment mfluence, whçrt it is to b« d^youfly hoped th^ wUl ever Zl ii.!«*Ê ^^ jf«\ rt If rr Mi s ' ' 'll(* ■?''.', It* '■• 818/ / -- . • ■ , always remain. But, as I hâve béfore stated, it is, and I say it in ail humiliW^) the duty of tiie Judge, particularly in matters affeot- ing our political^ relations with/foreign Statbs, not to embarrass the GK>vemment by an unwise jk injucucibus application of the laws made and intended 'êb ^tefieme the national honor and the gbod fiûth of the citiiens. I biow that for the means adopted bj the Législature of this PrQmce to euard against a répétition from ^win our lines, of St. Albans rai£i, the Oovemment has been un- sparingly abnsed. But do not the aut^orities which I hâve had the honor to ciiié — àuthopties reco^pùzed as laws binding upon ail civi lized nations — ^fullj/sustain the precautionary measures so taken^ Nay, I venture ta go a step furtner, and say that our (Government is entitled to the/éverlasting gratitude of the country, for the prompt ' And efficient means they bave taken to ensure tiie mùntenance of ^ur neutrality laws, and the mviolability of Canadian territory. With thèse remarks I must briAg my argument to a close, and leave to my leamed associâtes the commotion of the task", my part of which, I greatly fear, I hâve. but very imperfectly peîfonned. To your Honor's sensé of justice^ I commit the | case so miri^ I am concemed, ezpecting from you whose judicial attainments are of 00 high a character, a judgment that will reflect honor ùpon ihe judi- ciaiy of the countiy, and redeem us firom the imputation othaAig 80 Mr failed to'^'fulWl our Treaty engagements. In the words of the eminent Judge Jay, let us be fùthful to ail — kind to ail — but let us be ji^t to ourselves. March 22nd, 1865. Mr. Bethune, Q. C, (on behalf of the U. S. Government): — It has been a matter of much surprise to m^elf, and I havc no doubt has been so also to your Honor, that in neither of the addresses of the two leamed Counsel who hâve 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 hère in question wàs i^ legitimate act of war. To suppiy the place of such argument or autiiority, we hâve been favored with citations from books, to the effisot, that in gênerai it is lawful for one belligerent nation to kill members of the other belUgerent nation, and to seiie or capture' their property, and with the assertion, o^ repeated, that in àll that ocourred at St. Albans on tiie 19th of-Uotober last, the prisoners acted under lawM aûtfaorily. In the absence of guch argument or aathority, I migbt be content to rest this branoh &e of my case, ijplymg '' "» stonning a onemiea 18 C conCplaTd^^ *^^ "^ *' '^™*«' «^ *™«d who happened at the time to «f^w J^'- • -. "^^ividual Breck, woiding one ma? «J^/wr"' *°i «H^arged their fire arm^ bernas y^mî^'^Z": "j/ ^'^^ * ««^-^^ alleged oommiaBion ^w^t^^^ ' , ^ conséquence of the , « «CI waa (Wi^frM(r«iw;y one of legitimate warfere. ,1% ■ 4i)^ •T. I 1%^ ^^^^^Mjtiàfiii^jf^ù&i ^Kil^i^. ù h JÉL I IV" fi ' ! t ■«- "'^ •■» % v\ J i - î ii > 1, 320 To mûntain such a proposition, however, it would be necessaiy th&t the commisùon and instractions should, at the least, specin- cidly authorize the commission of robbery and plunder. Now, in the so-called commission of Bennet H. Young, he is merelj noti- fied of his appointment as a lieutenant in the proviâonal army of the Conféderate States, and in the three letters of instruction, or ^hat some of the witnesses called détails, of the same date, he is merely requested to organise a hody^f men '' for spécial seryice," and ** exécute such enterprises " as might be indicated to him, eitherlby C. C. Gl^y, jun.,in the one case, or Thompson & Clay in the other, — and, i(n the alleged instructions from Clay, it is s'tated, that he is authorized to act in conformity with a suggestion mad« by himself (Young), " for a raid upon accessible towns in Ver- mont." The "spécial service," "enterprises," and "rwd" hère refen^d to can only be legally held to mean those of a military character and such as are recognized in modem warfare, and cannot, by any ingenuiW of argument, be held to extend to the robboTy and plunder of banks and private individuals. But, /eyen 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 leamed fnends upon the other side to cite a single authority to support so monstrous a proposition. To afford them an opportunity to do so, I would refer your Honor to their favorite author, Lieber. At pages 16 and 17 of his treatise on guérilla parties, he says : " There are caaes-in which the absence of a unifolrm may be taken as very serious prima fade évidence agfùnst an ànned lurowler or marauder. * * * It makes àgreat di£^rence whetiier the al^nce of uniform is used for the purpose of concealment or disguise, in order to get by stoalth within the lines of the invader, for the d^truo- tion of lue or property,or fori^Uage. * * * Nor can it be Buûn- tained in good faith, or with any respect for good sensé and judg- ment, that an individual — an armed prowler — shall be eqtitled to the protoctioh of the laws of war, * * because his govemment or cmef has issued a proclamation, by which he calls on the people to infestée biishes, &c." And at p^ges 84 and 85 of the "Trial of John X- ^m Dr. Ideber, of date the 5th of February, 1865, in which oocur the following significa&i reiÀarics, which he sàys he %onld certainly propose to ada to h» work in a new emtion : I *^ I ought alap to faavb ^ven sometitûng on enemie» wko intfi*^ guif^ omik fr^ the temiory of a im^al to commit rçUi^ or mmw Tj aààihose yrih^ n>a|Y coine froni such territoiy m unî* term RÀlDiits, hâve éoer been tret^ted, qf 2j^ anjf vriter. -5\\> \Wted any vioktion ia proved to hâve b7en brZSd ^ST^- "" ^' '"^^^^^n ceçded thence, by waV of Cl!? . o ^~^ce, to hâve pro- returaedimmVdiatelytoclS; ^5.°"'*° St. Albans, and to hC therefore, in vSSS ^f ?h^ienZ™Sw^' ï T^"' -^^ seuuentlv, that the exnedîHnn^lIo 5 f^^^onty mvoked ; and con- ::ii^^ >-l -A i-n -1 Kl :* • ( f €k ■ - m _l_...;.l le ■■■'?' 822 \ from the càtegorjr of the crime of robbery, ifa which ît st. /a ï*"i^a&a?i?»!-. ^■ pnsonere were 828 inff the paper, aa ia aoDaZt Ll fl 'f^,''®®» pade a/ter examitr where he c& to pîJK fiS' a P""^'"" °^ his évidence orer, to which Mr. Clav marlfl ««?!• ^''^ """^J" ^«**«'-» mort .duce thia document whenhe midi LP"T'f' ^""'^«' ^'^''«^ *<> Pr' *»d *hat that the letter really kept bv Mr OU T® f overwhelming, eonaeauently that {t ffi no «IL? ^ T '^'' '*^°"™«»t ?> and 19th.3ayo/octoberirt. Theïtr^^^^^^^ ^''^T^ *« *b« mymind fatal objection to this hiSlv • ^Ï"''.T*'''"' ^'^d ^ ïmrportfl to be, in the fi^t placé a fS^ l^"^""^ ^"°"™«°*- I* - lage on landU SDecifi» «f nîl ' • • '^ ^^ ""^'ï"® ^ commit pîl- ciâizedw(^ldTeXi^;X;««^^^ unheard of^b claims for ito writer the ex«r!ti .7 ^"**?" "" *" countrjr,-it territorial jurisSrof Gr^aTB2?n''T.^ ^'«^^ *he the document for thes^ J;J«ni .* ? ,°* onlj, however, ia » total absence of^Xjr,:;**'''^/^'"^'^' but there' l Clay, junior, who th^Sed to exIrlT ^ï"* ^'' ^' ^' powers, waa gifted or clothS wiïî ^^^'^«^V"*!^ éxtraordinaiy the GovermneTrn 4o8e nal^ h« T' *?^^"^ whatever iÇ oannot be seriouslv coZnl? >u /^T®^ *° *«*• I* «urely in the letter oïï^tSL si J^fbî'^ Mr. ClaJ timself Seeretarv at wîToE , ^, ^"i' ^^^^""^ (stylinj Poss^ed of «^suchT^orJ^^W f^'T '' ^ ^«'°i does not and ca^ot legSTCw Mr S^ "l .P'"^ ^^'^ ^«'^^ he assumes, fo the^Se o? ail ^ff ^2° ""u*^' °®*''*^ «»Paoi*F Of the 8oyereignS.£fr° T ^"î!^ ^«"7 acoepr«a ^ the I?S7or &fK^^tr.. ? '"'^ C?*^erate States.b ttorily r^. 4r whî^ Tï, r^ .'^°*<'i«»ï certificate of au- tàsj^y .a':ShS *»«* Mr.^Clay Aj^^^-.lf^— "2glu?l . ""^ J Il 1 ;.-j-îa,' te îi '>â«S&«V^^i8UVwo^ i>'* "(.» \-~ >•> • \h ::t < . ''« Il \:l' "X V ' < , .11'! T 1 > »'! lilf 11 El M '- Il 824 States, on the 19th day of October last, and that the rest of the prisonere were on that day soldiere, owing allejpance to those States, and bound in the ordinary dischargeSof their duty, to take part in the expédition in question. The document produced by Young, at the bme of his voluntaty examinatîon, and which he calis his " commission as First Lieutenant in the Army of the Confederate States," is a mère UUer, signed by Mr. Seddon as Secretary of War, ir^forming him that the Président hae appointed him First Lieutenant, and further mformmg him, that should the Sbnate at their next Setsion admae and consent therèto, you will be commissionbd accordingly. The letter then directs him to communicate to the War Department, through the Adjutant and Inspecter General'» Office, bjf letter, his " ac- ceptance or ^nraeeeptance of said appointment, and mth such letter to retum to the Adjutaift and Inspector General the oath herewith endosed, properly filled^ up, tviscribed, and ««««'«<'• This dociinent, at beat, is a mère notification, that the Freadent had selectedYoung for the post of a Lieutenant, and neither purports tô be nor 2m be considered in any way to be a eommisnon; the very document itself announcing that such commi»non could only immate frfm the Sbnatb. Then can it be said, in the absence of an actual bommission, to be équivalent to one, seemg that the Senate was'not at that time in Session ?— Had your Honor évidence ■e youi that the appointment had been accepUd hjf letter, corn- ' ated through the Adjutant and JnipeeUtr QeneraV» office, >at wiih such letter of acceftance, Young had transmitted ta ^«j A&itant and Impector Mènerai the oath that vas endosed, propt^^fiUed up, wùscnbed and attested, it is possible that this question Vight properly be answered in the j^Srmative. But,, unfortunately for the baaeless pretensions of the defenoe, although they sent a spécial messenger to Richmond for the puiBOse of '«obtoining everything that was ^' neoessaiy to establish the bfiffigerent charaoter of the prisonôrs, and that thev acted under orders, who was in that city as late as the 4th of Febr!aai7^.hi8t, yet.that messen- ger \ïho^ failed to procure more than a copy of the above letter, widofon0oftheletter8ofinstrttctionfromMr.Seddon,abreadyalladed to, and cppies of copies of certain muster rolls, ail certified by a ûjr. Beniamin, styling himself Secretary of War, and sealed wilii a seal purportiàg to be tiie seal of the jo-caUed Confederate States, and whoUufmled to Mng anu document ivhatever, much lettanj/aet of confirmation of what had hem done at St. Albanêf tigned osr exemUd eitker hy the Shnatb or Thb Pbbsidhiït of thèse so^ed flbitoa. \ A pplyiag then the well known manm pf l*w^— >ÏLÏ,> I 826 - the mwmger tvat in Rtchmovd, and had been so ^nce la»t fin ^ wntten and communicated by Younc throuah X ^^^ 7 * ®I rnupector eenenirs nfRoA tZf Y *,j: ^ *"® adjutant and u«.jTO«*ur gênerai s officej — that no oath waa ever returnflH ♦/. ♦»,« adjutMit and inspector-Aieneral by Young pr<^4î/S ut^l/L SraATB,--and that both the Senatb and Thb PREfln^vï î ;; fclined, by any act of theirs, to J^fiZZ r^ifyXiiZZ^l denommated the 8t. Albans' raid. ^ So far'lZfore X'ïi^ soner Young « ooncemed, he acteff clearly' m^liawMlut- S^ AftTo^».^* ''/®'"'*' "^'"^ *« "»« altérations SSt • *nv n?i ?^ '''T ^r"'°®°*«' *o aacertain with certaintv tha* ÎÏLl •7"T^''? ^^j* *^« «^««Pti«° «f Marcus Spurr) are the ïeav^Hutchinson and Spurr were ««ch soldW fnfm th" lOth of September to the Slat Deoember, 1862' There ig a Lfll absence of proof that any of a,em we',^ soldiers o„ the IGtK 'r.l.^'^^1 ^^.^tu^fg !!id turr Tn tt^^ ^ tt.18 affidavit the delay is asked to obtain « certain istimoiï Me unable to procure jn Montréal, or even in Canada " And ît iî al^stated, that such testimony w^uld establish, ^TkU theL?^2 ^\^^'^î^ ^' ^ '"'^"'^ ^^ instrueln^Z The next point I We to submit is, thj^t ail the nrisoners ar* ^Jjtohave resWed inCanada for ma. pre^ouf T^nS^ hllf 1864 been attending the University of Toronto ; thev S t^ZT^ î.n8one« ^m Camp Doùgli. As mattir^ g^^pns on^ by mtiHn g C a n a d a ou ao ylu m, h aJ Oea^ed t^S teS ?Ji^î '""TT*" "* *^« expédition started frofa neutraî temtoiy, and iretomed thèreto, with theirapoU, immediately ^r •«* ■'^vî =**i W^k hS-^ * "4* ■iêtâltS , i ^■s^fi II r ■'■^■=Î5 ^v ^ » r > i I . /• 326 iis accomplishment, the expedit&n was absoltOefy unlawfuî, and, under any circumstîuices, created a forfeiture of the nmtràl pro- tection of this country. On thi» point I vould refer your Honor, to the following authorities : WUdman, page [59] ; 2 Azuni, p. 407 ; Burlamaqui, 2 vol., pt. 4, ch. 5 ; Ai-t 19 ; 8 Phahij^ore, p. 227 ; 1 Kent, pp. 117, 118, 119, 120, 121 ; Lawrence's Wheat«n, pp. 713 to 720, incluBively, and p. 722 ; HaUeck, p. 517, H, oW, 524, 531, ^23, 629, and 631 §4; Historiens, pp. 157 and 158; 3 Wheat^n, p. 448 ; 2 Ortolan, Liv. 8, ch. 8, p. 261, 263, 265 ; 2 Hautefeuille, tit. 6, sec. 2, p. 46, 47, 49, 93, 95. The fbllowing are some of the doctrines enunciated m theae authorities: . , ,. . j . - 7 " When the façt (of neutral territory) is estahlished, U overrules every other comideration.' The capture is done away : the pro- perty muêt be restoréd, notwithstandmg that it may actually belong to the enemy." i . w j i. « No proximate. acts of war are in any manner to be allowed to originale on neutral ground." " The law of war does not admit that the temtory of a neutral people should serve as an ambuscade for one of the belligerents, to favor his opérations of war to the détriment of the other." « Every voluntary entrance into neutral territory, with hostile purposes, is absoluteîjf unlawfuî." " Troops are not a part of the territory of the nation to wmch they belong, nor bas their flag any immumty on neutral soil." « The party committing the breach of neutràlity /or/aï* the neu- tral protection." " Although it is a technical rule of the Prize Courts, that tha captor can only recognize the claim of the neutral, yet, if the pro- perty captured in violation of neutral right^www into thepoaêes- . êiôn of the neutral State, it is the right and duty of such State to rùtore it to its original owners. And such restitution extends to aU captures made in violation of neutral rights." % .■ And Historicus, at pages 157 and 158, says, that this latter remedy can be claimed by the belligerent whoee property had been captured, and may be " exercised over property or persans who are at the time within the neutral jurisdiction.' I now corne to the question of tireason, which was raised by iny leamed friend Mr. Kerr. It would suffice to say, that the pri^ oners hâve whoUy failed to establish that the crime hère committed was that of treaaon. And if they had, the old doctrine of merger which is hère invoked bas long since exploded. On this pomt, I ^ould briefly refer to th& lea din& caae of Begina vs. Button^ et. al ., II! •■ 1 u 11 Ad. ; and Ellis N. S., p. 929 aaïêêq. AIso to lBi8hop,i549, 660 and 661 ; and to Wharton, p. 256, 267, 768 and 769. '^4 327 of law that « every sane peraon must be supposed to intend ?hS wbçh is theordmary and natural consequenceTws^^pitd act 18 too weU known to need spécial confirmation CZBy In bnnging my remarks in this protracted case te ?cbse I L not ^fram from again urging ,çon jour Honor, that the Sy si course to pursue m a case Uke the predent is toLu iJTZ ^ and the four Judges who sat in the Burlev casp thnTSv» ?• * vrown. xie saia . — it was mtimated bv tb#» Cnn^t «i. J.^ • ^^ .tage of tho»e proooedtog,, m ZoZX ^Za^^ a question cancemina the effeot of «. *«!♦„ "*»»»« omcerg, uçoi^ Jofflobncy of ,„«„,: a^;^, ,*:2&t t '^7t Thi ». o..d«ctmg «^ pro«.„«.„,„k™iSS^Sg!«';tnt^ . ; .- M ÎY^'^il ^r ^^.a=l ! ' 828 •'Mu j ' \ À :f ■i. to enquire, what may be the notions ehtertained upon this point by tho prisoners,'! feel bound the leamed gentlemeû who appçar to déclare that the exercise of thatf right under the circumstances, seems to me to- involve a respon^bility which public duty will not permit me, if Icwould, to avoid/; and that in this, as in ail other proceedings taken under the express authority of Canadian Statute Law, the CroMm is acting, and. it is not only its right, but its clear and inévitable duty, to acjb^,' under a direct responsibility to the people of this country, for the manner in which it seeks to apply that portion of the chinai law of the lànd which concems and régulâtes Jiroceedings of this imture. I ne ver could clearly under- stand hovf it came to be questioned, even in the excitement of the . earliest stages of thèse proceedings, (and to judge from the remarks on that head made by'my learned friend, who on the last occasion of your Honor's présence hère, was the first to address you on behalf of the prisoners,) how it continues still to be ques- tioned, that the Oovemment of this country bas a right to demand and conte^d for the exécution of its own municipal laws in the Courts of Justice in Canada. It is very true that a foreign Gov- ernment ifl, in the présent case, the prosecutor, or more correctly speaking, the complainant ; (for in strjctnesà there is no prosecu- tion before us) ; but that government is a complainant hère, not for thç purpose of trial and conviction ; but for an object altogether preliminary, and strictly defined and limited by the laws of this country — the object of ascertaining whether an offence of a certain description bas been committed, and whether there is probable cause to beUeve that the prisoners are the persons who committed it, and, as a légal conséquence, are to be tried for it. The place of tridl is not an élément 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 owi\ laws, our obligation to com- mit for trial, where we hâve the preliminary pfoof the law requires, dépends on the duty of protection which ail 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, dépends of course upon the treaty and the laws for giving it effèct ; but the nature and object of the enquiry are the same essentially in both cases ; are directed to the same essential and important object ; are controUed by the same gênerai rules ; and finally resuit in the same important end, viz., the trial in the country which ha» cognizance of the offence^ of the guilt or jnnocencej of the party accused. I hâve heard muoh loose talk; of still ' looser notions about neutrality, hazarded on Buggestive of still looser nouons aoout nei behalf of men who may perhaps be found, on examination by and 329 on the other dTare S^^n^rhi?Kr ^"«°<1« the narf nf th^ • vioiating the obligations of neutrals bv takinff partes SmlSwPrJ^^''™ *'«»""«<'■ •» iwest suspected General and MariIL.?« k '"""«benl, not only upon Attomies woddhave£ïLSi*ll*^ ^0^ the authorities or enquinr, Aa^this knot „ïïn ^^^ presuming, without examination warlike e:ro^oît Sless^t An S^'^^^T^ '?"^'°S ^^^^ * la^f'J pocketeŒd Tdf a militarjre- the Goveilent thi^ ''^''^''^ °^*^« ^'^'J^- The action of SWof dutylndlhEîln • . '''"/i. l* ^'^ ^^»* *»»« ««"«non «m mej oïd, or had done it m any other nianner, they woulS <. f *> -.M V i { \ 1 PI i 4t\ '■/Ail*" tâ^ V'^^'-r'^^- »^' i \ ji m 'îir •r 880 justly hâve been amenable to the reproacb of indifierenoe, not ody to the ÎTaith of treaties, but- to the commonest obligation of duty towards the people of this country. If, may it pleasé the Court, this case seemed to me to oflfer any occasion, for forenaio display, or in any possible aspect of it, either in what bas hitherto wîcurred, or may hereafter take place, it could afford any groiUid for tnumph, or even of satisfaction, I sbould be. deterre(j[ from attemptmg the one^ by the récent and still reverberating efforts and advocacy of the able and eamest men who bave prisceded me ; and sbould be " at once prevènted from indulgmg in anything like the other, by the reflection that, in à C?madian Court of Justice, there w, and tbere ought to be, no possible triumph but the triumph of tjruth ; and m any possible issue of this enquirjr, there must pf necessity reinam regret and anxiety on' one side or on the o&ep. On the side of those Vho complain, if it be found that our laws are powerleœ, to rive effect to treaty obligations ; on the side ôf the accused, if, awaking suddenly to their true position m this mopt grave transac- tion, they sbould at last find that human laws are not plaything»^ that the obUgations of nations are not trifles, and thi^t in applymg to their conduct th Aurest principles of law, and. the most unr doubted and settled rules of its admmistration in like instances, the color they bave endeavored to âve their acts, fades away at once in the Ught of fair enc[uiry and considération, and that the Btemest aspect of ériminal justice is alone suited to thei? case. Any topics of discussSm that can possibly arise hère, before your Honor, in the investigation of this complaint, confined as it is by law, to a prelinûnary enauiry, whetherûiere is ground to commît for trial, can only be treated, as I understand the subject, under three heads. First, the complaint. Secondly, the answer to it ; and Thirdly, the nature and légal limite of your power. I under- stand the cause of this enquiry to bave been regulated by yonr Honor's expressed désire, that ail the facte of the case, — ail that the prisoners could reasonably coutend to bave any bearing on it wbat- ever, sbould be laid before you, in order that you might bave ail that could poôsibly be advanced, as well by way of évidence, as of argument, m view, before pronouncing on the légal eflfect of any- thing that bas been brought forward. This owrse, dictated prô- bably by a jùst regard for the righte of the parties coneerned, 9M certaiiày evincmg an indulgent and hupiane (^ntion which I shaU be the last person to deprecate, bas left open for discnswon att thèse questiww, as nothing bas theréby been deâded, or intimated, . as to àe légal effect of such évidence, or more properly e^>eakin& tiiiflb informai information bjr way of évidence, M ÏM bë»n la^ before your Honor. Upon the first point that I hâve suggestod as prop^r for ai»- ^ 't^ ta ' - cn«8ion hère, there is-little, I inay Baynothing whatever to be obBepred. ^ The charge of robbery, aad the direct participation ip it ot ail the pnsoners, as weU as of some others not now betore usj it was of course the duty of the complainant to es- tablish |o the extent required by our own laws, m order to justify itcommitment for trial, if the case had occurred hère. That thîa has been done is uncontested, and indéed incontestibleif and no question has been raised oY even sttggested, that, but for the exculpatory testimony adduced on. behalf of the accused, they must be committed. If any such pretension could hâve been ' ™' u ' u^ "^* ^ ^ doubted that, at the proper time, namely — when the évidence for the complainant was over, ma before applying for and. obtaininga moûth's delay tô |)rocure witnessea m exculpation, the able and astute counsel who represent the pri- Boners would not hâve faUed to discharge their duty in that respect. We corne then at once to the considération of the second point. ^ What is the answer or defence of the accused to the charge thus avowedlyprove'd against them, and by what proof and what support m law, 18 it attempted to be sustaiiied ? Their answer, I take tobe, m substance, this. The act that you, the complirinant liave proved we cannot deny the fact, is there ; but tiie chaiicter that bêlons to that act 18 not of the description that you contend for. ' You.5Jy w !*ii ^ *^""^* ^^ nfpnicipal laws of the State of Vènûont, We teU you it was lawful wa*. , You clahn to treat us as criminUs ; we aver that we are soldiers, and that in what we did we aiîted aa belligerents, and under lawful «uthority . This answer undoubtedly opens a wide field of examination, as well of thç law afifectmg such cases, as of the particular fa«ts that ârise m this. I think, however» that the great expansion, or subdivision of propositions, which hâve been adopted on the other side,n»ay be advantagçously cômpressed, and restncted to the considération of this answer, bi-explanation, or whatever wè may call it, under two headà. . Firôt, is ît war, open and visible, m^ its ej^mal characteristio, and ite presumptive appearapce ? And, second, is it war, whether appawntfy âo or not, r^ S A P^*^*^ circumstances that hâve Jjeen laid before the Lourt. As far as extemal appearances are concemed, to conclud© only trom what was desqribed to us by the eye-witneaaes of this prwîeeding, that it was a warlike opération niay, I tUnk, be fairlj» said to be impossible. If common sensé were not quité a sufficient mude, by i^elf, to conduct us to this conclusion, tEe authorities already cited by my leamed friend Mr. Betiiune are upon this point K«T'- A U^h ^*'*^'. ^^"^«' ï'^^"^ WcSls^y, ient, -iron rach a point as' thîs, may safely be deemedsScientauS nty, to guide us to the décision of what is, and whaj; » not, consid '\ ^" '; V M. ■ il * f t r'»' ■ ,.,j. ■ ^ • .1. * .•.■.I' \ 4. 1 i ♦• i' 1 1' S ^W" -^ 882 ered upon gênerai principles to^lie an act of war. One of the learned counsel has, however, upon this part of the case offerèd Bome lengthy observations upon the doctrine of intent. With that «Rtetrine every Itae, I take it, who has practised in Criminal Courts, must be supposed ta be tolerably conversant. The most obvions and easïly applied rule upon ihat subject, I will taHe,the liberty of Ïuoting from one of the most familiar criminal books, Archbçld^s îriminal Practice and Keading, 1 vol. p. 392. I quote from tfce latest édition of Archbold in two volumes, with Waterman's notés : " Another mode of judging of the intent is % "presuming that Ith^ " party intended that which he effeoted, or that which is the natilral " conséquence of the act with wHch heis charged. If the nat^ral " conséquence of his act would be the death of another, a jury mm « fairly tnfer from the act that it waa done with intent to kijl. If " the natural conséquence would be to defraud another, a jury may " fairly infer an intent to defraud." Now let us apply this compon and obvions doctrine to the case before us, or rather to that parti- cular par£ 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 afifectqd by it. The natural conséquence is that Mr. Breck loses his money ; but it requires a great deal of imagination to conçoive, and a good deal of ingenuity to explain, 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 Ijiecessity of imposing some lirait to what may, with any appearance of reaaon, be alleged to be an act of war. If thèse 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, woidd that be dontended to be an act of war too ? I must. suppose fronl the course of the argument on the other side, that it wonld be held ; and indeed it n>u8t he so held, there can be no doubt, if _ the act taken by itself, or merely accompanied by the déclaration of th© thieves, thali they, as Confederate soldiers, can be held to confer upon the actors the conclusive character of persons perfonning a lawful warlike exploit. The troth is that, though ail authorities denouncé it, the practice of takmg private properly in war, orof inflicting ùnnecessary injury upbn unarmed and inofFensive indin- duals, is a practice (and that ib 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 caab»^ontende4.igLbe,^aaactQf warLin_it8 Qgnnatnre. Ijp,t from some part oÎT the testimonv — I forget whetber it was m Ûàa caae of Breck, or in some of the previoiis proceedmgs — that there I , •b>-.,c^,aL•tflÀ^^« 833 wa», àt or near St. Albans, an arsenal, or somel auch national Btruoturo and m the town itself, one and Jnly one, Joldier. S Wtunitiea of glory and destruction aref howeS^r? Llecte^ and poor old Mr. Breck is nmde, to p% a part 'm the histZ' of modem war,which must hâve surprisecî him quite sa muchZ it «r^Ul tir""^*! '^^'''"* ^^°*^°°« ^f ^«^^^ achievemeite and marual glonr. I will not stop no^ to discuss very minutely the TantZnt^' .°^ *^" ^'*™'" .documents that hâve been put f oZ« 1 1 1*^' P^r ^- ^^^^^ ï«g^ «ff««* I «hall notice when I corne to another part of the case. The question, too, of wbether ^ttese documenta prove anvthing at aU ; whether Young canTunder tt^e («rcumatjuiceg contencîed for, be considered to have^held a com- S^«:r«TS?' ^^l "^T *T P"«^^«"« *o *his outrage, had really CT ^' '^^^''," °^ ^^^«^ «"PP««i°g them l hâve haâ that characjer previously, and can be coSideïed to hâve been so ' Z:^.;f ^-«I^^Tt"'^* *^« *^°^« thisoflènce wascomïïted;' oLrnr/n* T 5"^""*^ ""H ^ ^''^^^^ ^«^ ^^ United Statos A^LTT : ^° i',°*'*'.® "^"^ ""^ *^««^' °^îght perhaps be said to be J^reï&de'T'/j*'- V^ybésofanîyet'the nécessitiez ana exactitude of légal proceedings may require it. What indepd J«^e the nomts unon which aU thfceleLted modem c^s^ ex- faction Êave atlaat tumed, except pointe of the narrowest ",ld f«t .^t'ï"";?^ description ? Take BisSett's case ; take A^d^Ws EtothVi;^fTST'L*^î^«^P«^«' ôr corne doZS5 fi«SLM "5® fJ^^ ^®f"*y- ^I^'» ^hat pointe were they ail -5^^Î?J^ defecte-wbeh may ahnost be caUed clérical defectà ' -^ the warrante ofcommitment ; and the last uponthe not much particular kmd of piracy mtended by the treaty. I feel, however ttiat the idea of tbs enterprise presenting in iteelf any aign of lâw- W« Z' " ,?ï'"!?^l' r ""'"^'^y ««w^anted b^Sie Tvidencr . We hâve alT heard, both in fable and m hiatory; of LtZes of IZ S th^ri'S'* *^' ^ î** endeavored to détend ite Zel ttons to thoae of the ox. We^have read, too, in modem hiatorv of t.w1^ Tooley Street, who caUed the'maelvrAe 3 of ]N;^d, aod proceeded to iJ t^ r t h e m nntitut io n of t h o o g ;-^ pretence that, m gomg to a bank, in the aiddle of the day» i ma m h '>'h . -V. '.:;•,! ■M iWll* i 1 . i!)». , ^AoV . \, -^ iit>. ! 8«4 Eeaoeable village, and easing an old gentleàian of two or threé andred dollars on the threshold, the prisoners can be presumed, or believed to hâve acted as a military force — having lawful au- thority from a bnwe and civilized people to do what they did. We must remember, too, that vre are hère dealing iirith.a question of proof, and not of présomption. It will not be presumed that Trar was being made a thousand miles from i^ seat of actual hostilities. We must hâve proof*— certain and undonbted proof — to take away the crinànal nature of the act, before we can say there is nothing left for a jury to try. The black color, so to speak, of the offence impristed^; must be oompletely washed âway before we can refuse légal efiSsct to the oomplaint that is supported aâ far as the law re- quires. > ' I oome now to the second an4, i^o^t important question ailismg «nder ihis head of enqoiry. The idea that i^e apt complàined of presented in itself any of t^e oharacteristics of lawfuii war havmg been disppsed of, there remains the very important consid- ération how far Ùie pecu^iar circuinstances proved on the prison- ers' behalf tend to give \t that ch&racter;.and,whether,%deed, the diroumstanoes 60 çstablished, (|o net oonclunvely depivé the, enterprise; of any posâble belligerent ohuticter, that mi^t other- wise hâve been contended for. It is not to be expected that the Govermaent of ^is coontry can viéw with mdi%rence, the fact so dearly eatt^>lished. by the defence, and the évidence m rebuttal, that this enterpriie reçeived its pretended authority within this i Province, and prooeeded ^reotiy from our fhmtiçr to St. Albans by tiie ordinainr Une bf railway. The authoHty put forward is the autiiority olMe. Glay. The date of that authority, as fi^ as it can go for anything, amwars on the âtce of the document itself to De 6th OeCeber, 1864.' It is directlr proved by two witoesses brou^t up by tiie prisoners, vis., Mr. Saaders and Mr. Clay,*^ that Mr. Gayresidea in Canada from June to Deoember of thi^t jrear ; and firom other parâcultos mentioned by thèse two witnesses; Il ia abundantly évident that Mr. €lay, thongh for obvions rèaeons, tiie place has been otoitted to be named, in the way usually prac- iàed in èeMat documents, was at that tûne either in Québec or Mootoeal, and probably in both, as occasion might require. = Wè hvre^ then^ ai the very outset of ail, a Mr <^iderstion of ihis case, the fut that it procedéd from our country, and I iay that Ihis fikot is not^djr of great importance and significanee b Hmlf^ but absolntely of décisive import upon the mérite of the de- fence or expltDatkm attebpted by the prisoners. The Ooturt will Temwolyr how, in tiieir viwtaatary examinatkaM^ ffae jaisoners i>ll lind a&ew upoii âMTiiierëinï âillie^ oountry. ' It nill' bé itiaMtib«r»d tob| how in addition to éôB aver* .-.n Si^*liiLibM, ■. \ ' • î e, the fact so 8«6 Mont, now proved by theii^ own witnesses to h& untrue, some bf Sî? ^«'f, «^'^ed to reproach this country and its govemment With whât they^were pleased to caU its unexampled conduct in this matter. It is far from ii^v wish at this time, to say anythine un- g^^i^lïïïî^r-î- *1 T? P^T"? f aggravating their présent «tion, butit is a rule of law, Which I am obliged to invoke, th4t ough a party accused can prove nothing in his own favor, by what he may say on his voluntary examma^on, yet that anything he aoes say, if aftenrards contradioted, must bave the gravest effect. Oh the degree of confidence to be placed in his account of the Wtosaction. Tjxe nnsoners were made aware, no doubt, of the im- portance of this élément in their case, not so much with a view of avoidkg their d^ect responsibility to the criminal laws. of this Oountry imder a prosecution for the misdemeanor in itself ; as on jccount of the direct and décisive bearing that fact must necessarily hâve upon the lawfuhiess of the enterprise, which they were going tp Mt up by wav of answer to the case made out against themT •And well aay thèse pnsoners bave felt that anxiety, and adopted ftàt précaution ; for even without the légal knowledge which they Ifel^ in a positaon to command upon this subject, their own. astuti ne» might readily hâve suggest^to them, that mankind would be , J^pieiods of tiie ongm of Bjicfi an extraordinary proceedine • for it jrashardfy for an insteaTto be conceived that without the crimi- ûa^^connivance rfscjmé^one, or more than one in this country, and Withoulr the 8eM% of a neutnd territory to retreat to, such an WitertoisrWoald ever bave been entered upon at ail, or that sane Jien %ould ever bave, contemplated it. fheir own good sensé top, and their own mforination,— for they are persons of some Mucàtion,— might hâve mformed them that, leaving positive law totirely out of the question, there was U plam and unanswerable î!!£?'"7^®r'^*^*"",°^4^°g«'^^ye^en the most just and ttIrtW and solemn war should lose its character, and become toMJ bngatndijge wben directed from the sheltér of a neutral teçntoïy. It is bècause nations who bave the misfortune to be in- '!5ïï.V?^"f?rî?^^*^®y.°?Y^ expected to be armed at ail pomtt ftom ^hioh they m^y be lawfuUy attacked : upon the frontier of the enemyi tipon the open sôa ; and even &t any point of désert or nninhttbited cotmtry ; tliey could not be expectei— the laws èf Jjr and of comteon dVilization fbrbade them taking the precau- gon to be^anned along the CQnimx>n ftontier of a friendly power/ Xhe law of nations authorwsed, and prudence called upon them tô De prepared at aU thèse ôther points ; but honor forbadè them to Jggggcta fi fkgfflyiiowe^ his pewer, to m ab ttf n hi r - 2? T*l. n^y^^îP ?*?®^ **" *<* ^^ prepared for thesuiprise and won ite thrtWÏKJrjr of theSr onemies ; but not for the acomesoenoe ^•"^Vii ^ 'ifï . t b M' r If h " ^ r ■ff à •'^ÉK*à\lhA»«''JïiV!V .'» J ."H iu><4 V .♦ -, ?. * ffM 886 or even the apathy of their friends. Clear as thèse principles uo- doubtedly are in tnemselves, they are still bore olearîy enunciated by writers on the law of nations, and by judicial décisions of thé highest authority. , The question of the absolutely unla^ul character of even an apparently jwarlike expédition sburtiàg^'lrom a neutral territory, has been evaded by the covtnsellor the prisoners, and instead of the question which ariçés in ^s cause, and arises under the évi- dence adduced byihemselves, being made the subject of discus- sion, anothër question, and one which has nothing whatever to do with this case, has been raised and discùssed by uose gentlemen. \The question we are interested in discussing hère is, whether, origin and progress in, and émanation, f^m neutral territory, deprived an expédition of lawful belligerent character, so as to nullify it, in the jpresent proceeding, in a neutral country, where its lawfîuness is set up to destroy the character of otherwise proved felony. llhe ques- ' tion which they on their side are 'désirons of trei^g, is whether, as between two belligerents, the one making lawful war in the other's territory, the soldiers so lawfuUy making war on its soil will be held in the Courts 9/ the invaded country, tuhen they are tried, to be ordinary criminals. — This latter question, the solution of which dé- pends entiroly upon évidence at the trial, is the oné that was dis- cùssed in McLeod's case. The only case, I believe, in wUch it ever rec^ed a judicial -décision, and that décision rendered by Judge Cowen, was to the effect that they were not an- swerable. I "am quite aware that in a review of this décision pubUshed in the Appendix to the 26th volume of Wendell's Reports, the contrary opinion is ably supported. The responsible judicial décision was that of Judge Cowen, acting as a Judge of the Suprême Court of the State of New York. The review of that opinion is from the pen of Judge Talmadge. The Judge, acting as such, , décides that, even in jiuch an extrême case as that of Alezander McLeod, the particulars of which are too well known to requhre répétition, the party is liable to the ordinary erinùnal courts. The reviewer says he is not. It may seem, that the Judge was wrong, and the reviewer right ; but still the décision is therë, legally onreversed.. Admitting, however, for the sake of argument, that Bvich is tke case, what has the» principle, in either view of it, to do with this case ? ^!Fhe question tiiere discùssed, is, whether tlie sol- diers of a lawful war-making j^wer are liable, in tfte enemy'i terri- tory^ where they go to make war, to be treated as private criminals. This is so clearly a matter to be discùssed between tiie two powers engaged in the war, that I ^eel at onbe the immopriejty of detl^niIig ■ t fae Court b y. any^r e a s op ia g to prov e^itHsa » -Wh e&ca^^^a^aiîés^^ will operate effectually or not for the acquittai of theç^ men, in the 887 ■ " - ■ \ Btate of Vermont, when they net there> m aA^- -j xt. « the fact« 80 alceîteined the1aî^i,r?^°'? 1? ^^^ ^"^- ^o tion of those CouTcomes ti Je eî^,^^^^^^^ ever may be our opinion unon the m«^ïf >i ^® *"»'' *od what- the United StaLTÎJn âe LT«T ^i^"^*""' ^ *^« ««^ «^ on the other h^d is lolKS . f ' •^'"*^ ^***«^ gownm»ent havecommittTol oX ôr„i?°'^^^^^^ "^^ <'«rtam i^en between UB andS ^o^t i^TwerA^a' ^ justice ; but we cann^tt"; t^ém 5ht^e^ir' •'^'.°'^^« °^ therefore the promise ofCarnla^^^^^^^^ ^* m due course, a trial of aU thèse points shS bThS S^V""^ would be the Drooer T>lftp« t^ ',SlZ!!T ^ -l-hifl perhaps hâve had no eround of comnWm* o!^j • xl f^ ^^> ^" ^^ «ide, occurred in En^a^d u^d^^ wï^U^o» ^* ^^ educated people know therernof^S'^r îf^A^^oses nj^ch aU and which are no^^cem of ou« .? n^^^^ ""^T^ oflrising, we had not corSdeSrther w^ Inlf r*" ^? ^^^ <*<>• ^ them ; and its vei^ exitence^^^^^^^^ ^^"J"^-''^ Ï*J^ ^'«^ are satisfied of th^justice onffSws ' *" * '''^*''* ^*^^"» i. i; . -lui Il;, 'ii^ acqurttedrtrerwMTafteri^^rST^^ fact wouiabe^a^-^r^r1.Sne=S;;:^;Sàt^ .kl Aït- .»,.>.;; ilj»,_i*i,F ""^J' î.'Atf ■«-^ ' ■■■•fMy 1 . ' 8«8 ' i dÛBt, or % ptttting; aa end to the prinoiple of extradition betwe«n Sir CoiCfall Lewis ohaervea with référence to thifl: /i"The bit d « aaawnption upon which a treaty of extradition resta is, thata " oivilised ayatem of criminal law ia exeCuted with fwmeaa, and « tbat the bases dûmed for aurrender are those of offendera really " auapected of the criTO^a with which they are charged. If a dia- " honeat and colorable uae were made of auch a^ treatv ; if, for « example, W pditical refugeo were charged with one of the enu- «mer&tôd dfencea for the purpoae of bringing him withm the « power of hia Goveminent,and rf, when he had been delivered up, « he was pmahed for a political crime, it ia clear that a ayatem of " extràdiUon could not be mamtained with a govemment which bo « pervartedthe treaty." .„ v xi. • xi. We cannot, therefore, aaaume the pnaoners will be otherwwe than fairly and juitly tried ; aûd evèn if we did, we hâve no right for that reason io évade thia clear obligation of the treaty, and to oonstitiàie ourielvea hère the tribunal which ia to try the alleged offenca, tima aiiperaeding the proper juriadiction of the Courte of the' United Stateai withm whoae temtory the act charged waa done. Ail after eoûsiderations connectefl with any anticipated abuse of the Tréftty miSt be lefl to the Executive Govemment, and cannot guide the action of a court of justice. To remove any influence, however, which auch an argument might hâve on tihe mind oi the Court, it may not be inappropriate to aay that ther^^is the cleareat authoritv of writera on international law, that the pràoners could not be tried except for the offence wUh which they are charged. Fœlix says : " Il est aussi de règle l'ior « dividuttont l'extwwUtion a été consentie ne peut être poursuivi et- «jugée que. pouî le crime a raison duquel son extradition a été " obtenu?' ' \ ,. , x x,. i: Addressmg pijBelf, then, at this moment, direotly to tiie queatioû whetixer the oircttijoatances proved in thia case clathe the transac- tion with the char^cter of lawful war, I beg leave to r?ad, ahuoet Without comment» ^me^xtrabts I hav© mad« firomthe mofltesteemr ed authorities upon international Uw. Upon one preliminan? point, îfc ia to be obaèrvèd that Judge Cowôn and Judge Talmadge, h» aritic, both agrée. ^* To warrant the destruction of property, or the tatdûg of life»" says Judge Cowen, " on the ground of publw war, it miist be what ia called lawful war by the law of nations. " AU will agrée," aaya Juge Tahnadge in m review, *^ that the wv ^hioh afibrds impunity to thoae engaged in it, must be a kwM ^war.» Vatteï 18, le. 4, sec. 67, says ; " a war hiwiul and in fcNnû is cwBÎttQy to l^ disi on withioift any iomt[ w *< fi^ an unlftwtbl war enlBï from tio»« meurnoM which ait t,W !ju ^ f fî «-'^ «1 litioD betveen m ■\ «•k irrerooMibiUty hère thev m3 T«^«®: " «e prisonew A^d them m^ be « l»»foi^act by the begin w»th the pretènded authority of WM the power of Mr. Clay, on Cana^ «Jonty of Mr. Seddon, the Seoretary m Attorney-Genenil Hall, in the McLeodé ' » Çw expresses hanself, with the appi monL ne qaotes ; *^ '''■ -- ■ • ^" ûations. " Now, îô let me a«k where ' ^ to gire lawful \ ODoy the au- fhe argument of , rend,, page 680. ^àasent of Mioltstone, • u T* «j : : "fif'^^ff^tifavm 01 JmaokstonA Bteoksle sa™, «an^t oTpiîif^^ h«« Sovereign's commands> ^d,«ro «tôt o^ ««a/» iri*k «1.0+ ^JT: ^ . ^ *"* Canadiâb I«t w ther«^^K S. ^ *°** ^'*^'^ of American territôpT «w, w,, «nerefwe, wità the eononrreneè of thmM i«» i.,u:-2r •*'"?'*'y. •je language.to Ihis <«8e/àhStf ÏÏ tTer^?i!Sf'!J!f'*^^ T y. ■A- •il À ï I A A^A&^J'^éM n i J f < ! rr ' i {Si a. 7 ' 1.? ' 840 favor of its 'sovereign, and you are his dave." How is it possible then, witKoutproclaiming that we hâve ceaaed to be neutrals, and bave deliberately, and as a nation, espoused the cause of one of the bellieerents, to hold that we can lawfuUy allow to be executed on ourwiLWbetherby meansofMr. Clay, or any , other person, the orders of Mr. Seddon or even of Mr. Jefferson Davis hunself, fpd if we do 80, shall we not cease to be an independent and neutral- power, and in the words of Judge Cowen, become the slaves of tiiose to whom we thus tamely submit ourselves. One or two things must be published to the world-by the judgment which vour Honor is bound to pronounce on the présent complaint. The Court must décide that the British dominions are neutral territory, as far as regards this war, or that they are not. To décide that they are not would be to contravene the public law of the realm, and the express command of thô sovereign. To décide that they are neutral, involves without the poBsibility of escape from the conclu- sion— the necessary conséquence that this act authorised, origm^ ting and proceedmg from, hère, is deprived by that circumstance alone, of the character of lawful hostUity. Vattel B. 2, c. 7, s. 84, •favs " It is ùnlawful to attack an enemy in a neutral country, or to commit any other act of hostility." " A mère claim of territory," says Sir William Scott, is " undoubtedly very high. When the fact is established it overrides every other considération," (5 Rob. enemy's or m a territory which belongs a There is no exception" says Chancellor Kent, " to the rule that everv entrance into neutral temtory with hostile purposes Is absc lutely ùnlawful. 1, Kent. 119, 4th éd. Judge Talmadge-'e review, 80 often cited (p.878 of the^ Wendell (admitting with Judge Cowen, that acts ùnlawful per »e art alike unlawftd in the Sovereig», and m the subject, adopta also Judge Gowen'slanguage, andstates the rea- Bon to be, " that where he bas no authority, there he la no kmg, for wheresoever Ae authority ceases, the king ceases, and beconles Bke other men, who bave no authority." The language of Chancellor Kent which bas been cited by my leamed friend Mr. Bethune, to ex- plain'the ci<«gon of the same author, at the same page, made by my friend Mr. Kerr, is equaUy plain and explicit. H« cites tiie authority of Sir W.. Scott, and says:—" In the case of the twœ^ Ge brœders (8 Rotll', 886) it was expUcitly declared#at no pro»' imate fièts of war are in ipy manner to be aUowed to onginate on neut r al gwun d ; and for a ahip to atation heraelf mAm the neu- tral line, and send her boate on hostde enterpnses, was an act ot hostility much too immédiate to be permitted. No »ot of hoatihty '■» m ■0 u 841 the comfort and support of one paitjr.» 1 Kent v 120 Vl mne docWne is contained in WheaS, p. TlSrand'at p 7i?^f Z^ fS? .."^°'?"* "«««' «"«h aa procuring provisK, C ÎTwS^ver "in t?« '"'' *? ''*^'^^ *^ any^^xin^ate JTf a^ doubt could exist upo'n this part ofMe cl, Tat^doubt wodd Burelvbeset at rest by a référence to the récent cr^of _ Burleyd^,(ïed by the two Chief Justice^ of the QueeXBenTJd Cominon Pleas, and two Judges in Upper Canada. This cTe is «o now discussing, that any extended or argumentative référence to ée Sbt of Xtï ""'""'^ ï\ ^« ^* «^*^^* cJe We t Lî! i «nanimity of opinion, was exactly the point which I hâve t SïïrfJ' ''^"^'^'^'^^ Cou^> in^the présent cte I^';l«rJi mcophon, or carrying out in any manner of such à ^« J^K^*^/"i ^*'*'*'y- S« solemn and décisive Tiud™t Crn'.*^^ J"^«''.'" ^'""'^'^^y «^i»«°t' and aaeriîeTueflt argument of every ^int, which the self-res^ct of the rrofessfon mTJpper Cwiada suffered counsel to raise, wm feit no doubt T Sî^'T'l ^T-^î^' *" ^« ^ "^^tt^»- ^J^i^h thly cou d not retse to .?S ?'ff • ® ^'^a^y way of treating judicial décisions • m mstead of havmg any answer attempted to «he reaa on oX prindnTê ofthat décision, we hâve been oïliged to conlnt iSes S heanng the Bar and the Bench of Upper Canada assXd ^d dï pieciated in a peculiar style, which I trust those l?S^ersoM mU not beheve to be usual in the practice of the profS b tW^ pwt of aie Province. But aparfc, may it please you.KrC; «^^ iltdtrrfÛrtKh'"" *" '""^^^'^^ S a^opront to^e charTlf J J ^^^ °" """^ ^"'°'°a' Ja^ to ««certain tne ^ttelTn f**'^*''^P^*''^y ^«"«'^««d as unlawful Thai onder the oomAon law in some cases, and by express statute in others Hi ^1 I r I ■In i- « ■^..■ li! Kj! û '■' î: ■ \ m , > 'i T p.k 4t V. \ 842 theV are subject to mdictment. If then this be law. there îs an ond to tbis part of the case ; and it remains to be shown bow Mr. Clay by coùiing mto oui* covmtry and aetting its laws at défiance; how by coming hère and in bis own person committing an indictable offence, and as respects bis associâtes, causing tbem to commit the Uke offence, he can confer upon his actions, or upon theirs, the character of lawful authority. It remains to be abown, I say, that -what in the cases of ail persons indi6criminately,wbetherforeigner8 or not, is directiy forbidden, declared to be uiâawfal, and ptinished accordingly, beTcomes lawful, when instigated by Mr. Seddon, and actually practiaed by Mr. Clay and his accompliees, the unfortunate men before the Court. Before taking le^ve, hoiiEi»ver, of tbis part of the case there is a very high authority, and a very reeent One, which I find printed in the pamphlet containing tiie trial of John Y. Beall. It is the authority of Dr. Lieber contained in a letter read by the Judge Advocate upon that trial, to establish points nok arising in the présent case, it is true ; but it incidentally touches upon the point we are now considçrmg, and in the followmg words disposes of the légal character of such enterprises as tbis upon gênerai principles : '' I ought to bave given something on enemies who in disguise come from the territory of a neutral ttii commit robbery or murder, and those who may come from such territory m uniform. I do not believe that such people now oalled by the unao- ceptable term " raiders " hâve ever been treated of by any writer. The thing creatôd no doubt in the mind of any one. They bave always been treated as brigands, and it oan eaâily be ehown upon principle that they oannot be treated otherwise. Mever, ao long as men bave warred vrith one another, and that is pretty much as long as there bave exiated su£Scient numbers to do so— bas auy bellige- rent been insoleht enough to claim the protection of the lawsof war for banditti who take i^assage on board a yessel, and ^en riae upon the captain and crew, or who gather in the territory of a fiiendly power, steal in disguise into the country of their enemy, and there commit murder or robbery. The insolence— I use the term in its scientific meaning — ^e absurdity and reckless diiregard of honor which characterize tbis proceeding fairly stagger a jurist or stadent of history . ' ' This is the language of the eminent Dr. Lieber, an autho- rity admitted to tie of the highest character by my leamed friend, Mr. Laflamme, who was himself the first to cite the work in support of the pntion which I do not contest, that as between armiea in thelBeld, the laws of war alQne apply . The insolence or non-insolence, that is to. say, ihe unused and unheardof character of such proceedings, is doubtleas the reason w hy no writer, as Dr. Lieber says, bas ever oonydercd "iMirSrrfiK while to waste papér or tiSô iF^ûribtng, ôî" tn mauner dwelling upon, wnat is in itself obvioualj ui]^uatifiablé« \ 848 Hère then I feel I may safely leave this most important and deti Sr m»^P•*l'^i^'' case hardly less important than the preced- wt f ^if "" ?' ^""t '^ *^ examiniqg magistrate in suchfaaes ? What » the nature and extent of his pTwer ? For the purpcse of ttuBenqmiyitisnot necessaryto assum^ thèse men to be guilly. S wE^lr °'^y,.^?5°« *at there is an accusation agamst them, for whHsh they are hable to trial in the Unité.! Stafes where the act yas^committed. What then is the duty of the magisSj ? Hir Comwall Lewis puts it thus clearly and explicitlyf «In W tr^'l^ T^"" ^^ fxfradition effectuai, tL a4)unt of w „-Îk *i, ^'''™*l**'«« required, should be aa small aa is consis- fW ! «5 prévention of abuse. «,<* essence of the «ystem is, that confidence 18 reposed i» the foreign government aid in its administration of cnminal law. The assurance of that government Zïi^nw v'^!u ^T"?' «^««ins^f abuse. If, therefore, it olaims any fugitive through the accredited „«plomatic channels, and gives a reasonable proof that there has been a proper investi- gation by the officers of police and the functionaries conductine the Fehmmary stages of judicature, apd that this investigation had led LflS°° "Tw*^^*.**î^ Pe«oo in question is guiltySf the offence charged against him ,t is désirable that the extSidi4n should take investigation, such as a magistrate would make for the commirent of a pnsoner in this country. And again he says : « ïhe récognition of the crfininal law of a foreign State, and the confidence in its regular and just adwnistr»- taon, whichis imphed m a System of extradftion thus caSd into effect, is paralleled by the established practice of this and other countneijith respect to the civil law." «* In faoWhe rule, thus clearly stated, hns been foUowed in nra^Hce wberever questions under the Tt«aty arose. In tho Andersen case, Chief Justice Draper, with référence to thecase of a party accused of murder, in order to justifVit, obse^d : If there w a question of fact to be tried, I apprehend he must be Bwrender^, a« such a quentùm can tmly he tried in the eountrv where the fact arose." ^ ^^îi*! Chesapeake case the same question was incidentally dia- posed of. The counsel for the prisoners waa proceeding to comment on the évidence of authority from the Confederate Government, when Mr. Justice Ritchie observed: "Assuming, as you must do at thia stage of your argument, the correctness of the proceeding» ^gg™e g-Monep, And the magis trt t tg's iuri a diction of ihe offemâ^- 00 not thèse Questions fall within tha n»in;w.»o «f +u« a :_- n î on not thèse questions fall within the province of the Superior Court the tnal of the prisoner ? Is it not the magistrate*» duty now %■ )i.l£^.^- -i«lti>.i."iilita.»»J..'h.'..u /„,^ . , . V- -J .. 'i i. iP\ : m ^i» < , , ,li u l^ * 844 merely to see if a preliminary case is înade out ? I think we must act in ÛÔB cme just ag if it was an oflFence committed hère. The question is, would I, on the évidence, commit for trial in this country ? If so, must I not commit the parties for extradition ? (^Coumd.') " ïn Anderson's case a,primafacie&> f: Il ïf v H> à ïB4» confined to theascertainment (» facts ^hkh cian wl anjr conséquent anlt purely ju||cial invelli^S^n o! 'It i8 coiÉfended, therefore, thii|* Ijpth reStegJÉIfnd mère ex *v \;\ ^1 i \ ••'* ' Il ; rt thç eonclu^n that under ttij| terms'ê lute? relating thereto, on a T^j^^èatiary jùftie ht to pronounce upon tllï© Bfe|t« pf feîctàw]^ whîcfet^e prisoii say that toese acits ry ^é8,tion, whethçr ' ' wte characteïr of en tVo belligerent powers hâve a act is one of rqbbéry or one of atral power^when there irno doubt gei'ency which- exists, tlie icit wonld ecMé'so gravé sead serions a quç||S^ oh a ^- ïttl6ttiry. If one belUgerent ireats prisoneréJÉ, félons, ^e« tB*y were Iput pprfonning itheir duty as soldiere, i^ other belli^tqi^t, to Yihom the prisoners profess allegiànce, can^btain récures» |>|» reprisais,, retaliatiop, or otherwise. ' j ; j havelTOw endeâvored to lay éefore the Court in as succsiuct a . Wiâitaér as 1 was able to do, the view which I, humbly representing ^;tii«l^^t Law officer of the Cipwn, hâve feit constrained to ti^e of "«transaction, and «f the'attempt thp,t has been made to justify I7have endeavoùred t(> perform a legaL function, in a légal , Àan^er, and J hâve purposely avoided ail allusion to many topics, - yrhich iù. so serions a (lase might possiblj hâve juïitihed almsion on mv part. There is one aspect of the case, howevei», resting on the •jbrWÛiest grounds of intema^onal comity, and of the duty arising ont of the relatibnship which shotdd properly subjdst between^two countries situated as Canada and the United States. He circtiim- «i^stan'ces of the two countries, — their geographical position, — the ^Bfficulty çf exercising eflfectually a continuons vigilance over the acts ' of those who under pretence of sôeking mère security, hâve onhr resorted to Canada that they may mature ,with impimity hostiiie schemes àtgainst anadjoining power with whom'we are.on Jerms of peace and amîty, hâve ail to be considered. Our oondv to be what we would expect and exact from others in the , •and such aa the law of ojvilized nations, in the exceptàoii we ocçupy, demandftg^irhe doctrine of afibrding tdcàl refugees is a4^«ffi| to the fulleat extei^t ; tality, the dictâtes ^|p|panity and the gênerai feel support it. ^ But it isan asylu^ in the |ât>per ace wordj^hich is sought ; and aire the prisoners polit -oxile^rigfilh(r 80 tèimëdTibtcr^tjr is not mcmnlëc sanctuary within our territory unaer ail circumatance 1' 347 * J the^pnvUege of asylum is not abused to the inmrr ^a fSI ' Ë Power 18 equally ïmperative. We are bound to coSîde?wheS Bufcral ground îs only resorted to becausç it oS aslfetl ment resting place in the intorvalB of warfarerand a^^e * fiTfL ^•^?x"^'*J?''^'" ***^« ^®e^ undertaken and committei m for the proaaim^ of the suppoaed aeylum-whether th^are wil 7*^;*^ ?t«fcable to and prompti solely by the SC whioh our temtones afford^both for attLk and escai wT n.„!J fiamre whether the animus in which itTs Boughr^^^btl^r^^ ï; lCbT^'°* "^f""*^' '^'^•* ^^«*er the party flednrcomen mlf^ï l?*f '^'- ^^ ^« *^« «^*«fi«^ of the contrï^Ten^^ ïlmTuaeS^" neutral gn,und cannot under thr^e of ^ ftSTV-* *^t.^M* """^^^ ground, and that thé pàrty fleeine Mcuntv which nation» usually accord. He haa no richt to abn^e &e onïy pnv.lege which our^oil ^onfers-that o^mrs^elo an^scan^hSfrrT ^"^ f *« "«^*' ^o^^^fC^ he ÏÏvod he S ' ^u\^f ^. "«^^""^ ^«« "«"•' a^d ttat he supZd Ikm J^^ that asylum in safely. If within m SSion/nH ^«/«««P^'-^t^s and prépares for fresh acte of «ggresBion, and w not content with finduig securitv amûnàt ohnr«»«. £nSh« r^ï.^^-''"'.^*"' ^'^^^^^^^'^^^^^^^ °^ otheraj then he Kn«Jf. r*r ' *^ ''TS overfcome aa a pombatant, flie8 from bS»reX^ S'» ""'Tî P^*'%°^ «ecurity-not one who merS^ ÏÏt he«^,l J îr*''*^ ^'^"5*^.** ^'''^'^' "ûdertakea to inflict an • ÎM^te^ae'r't^ intendeïïI^iiC» whf r;^^^^^^ gredatory aets ^er the name of w» ae^g an imaginary line &rComwall I^ put the difficiUties whioh raiistSSfroinX wwnunitj extendèd to guch acts thus :-« U mrt fthfweîer b^ ' Zdva!Sî»! «und pnnciples, is exempt from îte cciipeiiatinK iirîîîîiif'' ^'^ '**. n«»ghhpr. Where t^ territori^if neighft^r- . ' -'1^ *4&'< «.«nation.arec.te,^^-S^U:^;^ •^■■1- X r ' ■•':«;:■.:.,.. VH-. \ .'■!■ 848 arbitrary line, witiiout anv natural démarcation, suoh as a chain of high moimtaiûsor a broad and unfordable river, and where therefore a facility of mutual pdssage across the frontier limit existe, there tbe entire iiitlependence of the two territories for the purposes of oriminal jurisdiction may lead to a permanent state of ihsecurity both for person and property.'^ 1 My leamed friend, who spoke last on behalf of the prisoners, has refeiréd to a jportièn of tbe speech of Daniel Webster, made in tiie Senate of the United State, in defence of the Treaty of Washingtoi^ for the purpose of showing the exemption ef the persons of soldiers from individus! reaponsibility for what they do while acting under lawful ôirdérs. Nothing that was said by Mr. Webster on that occanon — nothing that has evei* been said by any authority on tiiat sâfject has the aUghtest application to the présent case. The whole weight of the authorities cited in support of the principle contented for by Mr. Wqbster, applies to lawful belligerent opérations, as recôgnisea and practised by civilized nations ; and it is merely begging thé question, to assume that this transaction is pf a lawfiil character, ror the purpose 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 question to exeû^tron fix)m trial. On the contrary we find bis exprès* words to be at 'page 125—" That McLeod might insist on ihe same factsi^d msist on the same 4€fonce or exemption at bis trial." This Cm the answer of.the American Secretary of State to a letter from Mr. Fox, the British Minister at Washington ; and further on, at page 131, we find Mr. Webster using thèse very words as if to set the maiter at rest :— •" Mr. Fox was told that thèse proceedings must go on, until tliev yf ère Judieially terminated,^* and* m point of fact ^ know that they did go on ; that McLeod was brought to trial, and acquitted on the mérita. But since the wriiàngs or the sayings of Mr. Webster are referrod to, why did my leamed friend's examination of the speech çome to such a sudden terminatién ? Why did hehiot proceed to that farther portion of the renowAed statesinàn's explanations on the subject of t^ treaty, about wl^ch there can be no doubt ; that portion of hia remarka where Mr. Webster himaetf tells us not only the object, but the efect of the stipulation of this Treaty, for the mutual surrender of fj/^tivea from justice. Hère are the words, at page 140 : " I undertake to say Ûiai the article for extradition of offenders contained in the Treaty of 1842, if there was nothing elae in the Treaty of anj^ iinpoHM.Tinft, has of itaelf been of more value to tiU» couitiàry, and is ôf more value to the progreas of civiiization, the cause of humaoity and the good understanding between nations, .î\' /. ~ ' 849 • thaji can be readUy computed. Whatwere the state.and condition of this comiti7,'Bir, on the bordera and frontière atthto time of thia OYeaty^? Why it waa the time when the ' Patriot Societies ,' or ' Hunters^I^ges' were in full opération, when companies iere formed and officers appointed by secret associations to cafryonwa* m Canada ; ànd, as I hâve said alreàdy, the disturbances were so fréquent a«dso threatening, that the United States Government, despatched General Seott.ta the frontier to make a draft on New York for inUitia, m order to préserve the peaoe of the border. And now, Su-, what waa it that repressed thesê disorders, and restored tte peace of the border ? Nothing bût this agreement betweeû the two govemments, thatof thèse ' Patriote' and ' Bambumers' went from one side to the other to destroy their neighbor's propertv ta^ng aU the tune to bring on a war, (for that was theiç object) * they shouia be dehvered up to be punished. As soon m that provision was agreed to, the disturbances oeased on the one side aad on the other they were heard of Winore. In the formation of ans clause of the ïreaty, I had thradvantage of consultation ^th a venerâble,fnend near me, one of the members of Michigan. «le pressed me not to forego the opportunity of introducing some «uch provision ; he examined it, and I wiîl ask him if he knows ?Z {^"^ i^'^^x... JS^® instantaneous suppression of thèse border difficnlties than this Treat^ provision." WiU any one uridertake to elevate thia St. Albans outrage above the character of the misdeeda hère described by Mr. Webster himself as within the express provision of the Treaty ? Will anv one contend that it partakes of the character of war half as mnch as -many of those expéditions ? Having now laid before the Court the View of this case which my duty compeUed me to take, I shaU abstaon from an^ further observation not absolutely caUed for bv the circumatances. I feel that any sane man—to say nothing of a grave magistrate, must be expected to caricature his imprewions before he can pronouj^ce the aot of the prisoners to be apparentlv ian act of war m itself. I feel that whatever it couHrunder I any circumatances hâve been oontended to be, the peouliarity of ita I Jttipn on, iMd émanation from, neutral territory, completely deprived it of aU p^le hwful character ; and I feel îhat we ahaîl be (rana- çendmg our proper fuiM|s, and assuming a responaibiUiy and a junsdiction jre do^no^i^pKqr if ^g undertake to aay that we will appreciate the guilt or mâcence of the parties ooncëmed, and do- «de liât with aU thè8«r queationa untried and untriable before na m will not exécute thia Trealy, and aend the priaonelta for triai « *»«. » /VW.O it^aaa^ be j|ad. ^li^aa beenin ai n uated aore thammce" " U f • v^' j. „,.> _^- '"^^ jC"'. *• "■" •***" inBiraHKiea more tbammoe m the course of this cA^ that thia country ia aoting under fear and pressure in thia matter.'SPuoh topica are not naaal ini^i^iah Courts < Ji-KS ÏHi 'l'i' -itç.-f3 ifiii 1 ffii il imW P IIVj , % of Justice, aot We fer too rendolent'of . the hustiigs, and of polîtf: ejana of tke wcond table, to be welcome in thèse Mh. If sÏÏ a tibngi^re possible indeed, as that aiud||^thi8 country Zuld forget his duty to the Laws, froi^mmmm^ fi««a^^ ^ woui4> diifiLt t. iBia^' /fSŒsfrs irrthe Wene^ dut dares not expreas ; but leaves it tô 'be darkly u^deN & ^^i-T '^^^l^^'.^y does his duty in such an emer- .«Jk ^bk to the odious and calunmious imputation of b^^^ry^^i'^^J^T'?^"''^'^^'- Allusion hàsWn made iUÉi^^ •^'^' *^- ^'«^«n'ûe» to what he is pleaaed to Jl ^^portantcurcuDMtances that hâve occurred during your Honor's S^ The onejs the exécution of Beall.and the other a letter of ^cZTf 5gf ®^ «"«OMwtenoy between the judgment of the UpU Canada Ju4géi and the act of the Aiperiean Gbvenunent. No E mconsistenej easta. Beall was ,xec4éd as a spX mitiaJ lai ïl •''•'S' » ^f««««> Canada, or demanda LsShjm i^can Goyenunent. ^ Burley was surrendered and properly^tried f^the o««i^or at dl events is to be tried for it, for whfch he St M^ri.'^ Judges of Upper.Canada 'never dedded ^at BeaJl,.who8e^e was never before them, did not comntit rob- , be^ ; they only Jbeld thivt Burley did. The dUpatch of 3 RuT seU seenis tobe tak.n a. a judicà décision, liSffaS c^S S , «QtheIloawikewa8anactof*iwfà.war. It is lu^ sûch thiniThe îirvS 1 u "^W?**S>J'*'y were Obligée ttf.employ the ordi- wy offiaal ^eJKl mé^ their «unister ijf L4«»»alf 0^ Crown. ■~~f I A ^*y '* P^**^ y^*^ Honor^CoMidering the length of *uûe already dévote/ to the argument of thia cas^-the SJ i^J^ "îf havepreceded me in the discussion of it-and mo^ Jjfculariy the circumstanoe of your Honor's récent iUness, re™ Henor a indukenoe for a short time, pMpiaine, as I do to C - myjelf entirely to the légal asçea of 4e *t«^«r ^itl» jour . iïïrKi^li^ nWiutjr^ use my beat efforts to copvince -yo«rg|gor, that this demand la just and reasonable ; that the laW KJ'^'ffii .T**"^ ^ administer, imposes upon you the oWiquent aliénons and ■£■ . ,1 lAoL I ^flp ' "^V II. «fis ' diMgea in tJw constituent part» of the body politie vaA !ii4h«l* Wlatwûii to each otber do noraffeofc tho chaS^^ie Udl iSSf toniU law The ^tate winaini the same p^Htici Sir «^^. «i«»bty .8 destPoyed by pterruption in it» J^t^n^lïî'^SÏÏJS «ddiatinctwciety; and it nefther looaes «y of ?ts^5iSÎS^S Asoharged from any of its <^bKgationB, bv anv b^? «ÎLSSLI dmnge or internai ?e.olution:" *\ fiS^t? oSTiSfl^* ym ^at the T«aly between Qt^ Britaiii to/the ifnitod sÏÏÏ for the surrender of offendere, was not in anv-wa» SmrïîSîi - Jjfected by the e^stenœ of civU wii^Sn^ô Sr^tt ftT ktter, or by any change in ita i«temid ;m^rt^^^Z>^!t ' jell to be uaderstood, at a period when alter^tfons in the^Ll tH)ns of goveriHnente M revoluUons in statea aw fiS Tt^S^ W a cleas- position of the law of nations, thartSf LT ^^^ affected, nor positive obUgations of any kind with^Seî wwe« , «r. with ci^itoi», weakened by any 8u«h mutatir ^25 neither loses any of its lighte, nor-'is discharS'from ' Jf m. ^"^f H- ? ?^°8e in the fonn of ite cîrfgo^St Tbe body pohtic is stiU the aame, tihough it may h^e Td^SikTI o^^communication.'' The Lne S^trine ^.it V ffe Ist PhjUimore p^ 143. He came now to the ipost im^Tcoî ^erabon, embodied m his tiiird prepoBition;whioh wmTS <ÎÎ •ifect:— The Queen's Prochunation oTEv IsS rf«TSL *u neutjlity of the nation during the\ffi^i^,^&*Jj Ae Government of the United States and certain sXs^îS ^emselyes " the Cojfederate States of Ameriij iT^^îJ^^g of a national nght, the efieot of which at most, is to rocaid TS PWfa«. as entitled to belligerent rights or privU^jJs of Zmer^* but thèse hghta must not be confoSnded vrith thfriirhte^Kld' loges res^ti^ from the doctrine oîrecoa^" ZL?to reeogn^ the Confederate States m ,#Snendent làvflrïï^,*» . ^d au courts and judges are homM'^CZ:^;^ r^OSie gloirâ^ ,rere oited m support of this D»nMi Jcjc-HaUeck, p 76, 76--« The recognitionTCe bdepc^^^ mhJlT^^ °^ * revohed province by otiier foreigTSu ^^^y^ J^^^."^ established in ftSt, is therefow aT^ for itse^ l^slatii itself; but this détermination must be made by the iov«^ «labve ôT executive power of «w state, aad not by »n/«K£ '4 "i ) '-#- ^TÏ? »%»! 1 ■vT" # ir li :;i^sî. 1^ <«5 ^ ^■ h: ^^■\ '4; • V:^ i^ll^H Sa 93 - . f X 864 o dinate authority or the private judgment of indiyidual subjects. And until the independence of the new state is recognized by the govemment of the conntry of which it was before a part, or by the foreign state where its sovereignty is drawn in que3tion, courts of . justice and private individuals are bound to consider the ancient state of things remaining unaltered." L's Wheaton, p. 47 — (Same doctrine.) 1 Kent's Com., p. 27 (note) — "It belonga to législative or exçcutive power (according to the character of the govemment) to recognize the independence of a people in revolt from their foreign sovereign ; and until such acknbwledjgment be made, courts of justice are bound to consider the ancient âtate of things as remmning unaltered." — City of Berne v. Bank of Eng- land, 9 Vessey, 347 ; the Mtinillas, 1 Ed, Àdjn. R. 1 ; Yrisarri, V. Cléments, 3 Biggham, 432 ; Thompson v. Powles, 2 Sinipns^lO^; Taylor v. Barclaiy, ib. 213; Rpse v. Himely, 4 Craûch, 241; Hoyt V. Gelston, 13 Johnston, 139, 141 ; United States v. Pal- mer, 3 Wheaton, tilO. 2 Phillimore, p. 37 :— ^'* It is a firm^ established doctrine of British and North American, and indeed of ail jurisprudence, thafc it belongs exclusively to govemments to recogize new states ; and that until such récognition, either by the govemment of the éountry in whose tribunals a suit is brought, or ' by the govemment to which the new state belonged, ' courts of jus- tice are bound to consider the ancient state. of things as remaining unaltered.' " >• ïhe citation of thèse authoritiesmuq^e sufficitent to establish conclusivelyr the proposition he had submitted- But he would remind hi» ' j(l6nor that Mr. Laâamme had end^vf^red to apply precisely th^^Swme principle to another proposition. He had also endeavoreçtto draw this déduction, that the prisoners would bç treated as robbers ; but his Honor had not to deal with the consé- quences that'iûight ensue in any coxmtry, but to deal with the case as it presented^itself before him. ïhe learaed Counsel now came to hisfourth proposition, which waa that, applying thèse uncojitroverted rules of jurisprudence to thç caSe, the pretension of thé prisoners' counsel, that Bennett H. Young was a duly commisaioned officer ii| the service of the'°Coi^ederatQ States, and hence irresponsible for the acts perpetrated at St. Albans, and that -this Oijurt was bound to take notice oftfaiat commissiop as proved, was an imtenable one, and at yariance wiUi the jurisprudence oî English and Amçricaji courts. The Court was bound tcf^disregard thia comdnwiou and the évidence relating . tl^reto, . as. 8h(fwn'% the authorititt^ he wouldoiie. To adopt the pretension of the counsel fot ti^^àbn- ers, would be the assumption by a Ju(^e of lég islative or'J^j^l^ve powers. appertH^ny-Bolely^to &ë Executive Oovefinml^^d~ virtuaUy io recognize (which England hithertQ had not done^ the ;?■ *y . ^- H( t4 >- 1* ; ■ ^i>*- "'«T . ' ; A '^.>.*-,..,- \ p. 43 (note) it was stated :-« But iris to fil u ' ?^^^^*«n» the question ofbelIigerentri,„«!p f '^««^mbered that in of Mependence f 2cS^^^^^ Normal ackhowle/gment with the Courts • aiid îf „«« 1 3 ,■ Government, ind net Court oftheU^tedStaLTl^^^^^^^^^ ^'^^ ^^^ *^« %reme condamnation bvrCourfnf A / •' 'V ''"^^^^ ^ *h« ^^lidi^ of a ' United 8£iaï?orhitheiTt '^f^'^^^^ ' Mexican Republlror Stafp n^ acknowledged the existence})f a not copaider Wailv fol /^' ""'^a ^T"' «" *h^* ^îourt could ComSon ofS Slfc or S Je ' '' S' 'f^'^%o^ «ag and vpi^^r^s^^ &tf m^'it^r^^ ^ peared|hat:tOpreveétademurrer tZhwr-/* "'^J' ^^^'^o ap- BHtAbir Afl «„ ;-j» j "r ^^ *^P*'" "»a been recognijsed bv (îrpaf intJMK?^' A r ""«Sf >«n 'S false, and not to give ît the What waa done there i^as tm- ot»™- • ^ ?. J"<"cial décision. > *»»«i« ï«i^Çwn.8tr%tl^^*d hJ8 posiS ^' "^ *^' P"^''P^«» 3taS;:stderxShi;tei^^^ ' States of AmericJ-iSEït^i ^ W obhgahons wilblhe United ■ oui/, and thatthe otherMU^nT? * ^ * «wn Oovemment / power, or a Beatral nirtion, oan> ' ■k^'i'--'- • tt- ' 4 ,y ■ "-■„;^i .^ " ■; 'i :■ ■M I-, 5f M'. n? '.f^> u» ^ l'\ i.<^ îf sU * % ij è ' , I» ' » ¥'•' not constitute themselves ihe judges of suqh violaticm. It suffiees to show the fallacj in this case of such preténsions, to state that thèse considérations could onlj ârise in what is called a perfectwar hetween two distinct nations, having a separate national character and equal rights of sovereignty, quoad the neutral nation. He thought the mère enunciation of that pi'opoàtion was sufficient without entering ihto a discussion of it. What was the use of Ûnd leamed Counsel on the othët side advancing principles whic^ could hâve no bearing on the case. Even takîng it for granted that the Judges in Upper Canada gave as a reason ^r their deeision that there had been a violation or déviation of àuthority, it se^ned to him that the Court in that case was bound to do just what he now called upon his Honor to do. Waa this not a treaty with the United States, as binding upon thèse prisoners as any one else ? The décision in the Burlej case was right ; the Judges were bpund to consider the^ancient Bt«ite ^f things as unaltered. He now came to the second branch of his c^se,— Bennett H. Young's commission considered from another point of view. ïhe alleged facts were thèse : The commission bore date 16th June, 1864^ purported to be signed by James A. Seddon, Secretary of War. Letters of instructions, bearing the same date and signature, were produced, directing him to organise " a cpmpany not to exceed twenty in number, from thpse who, belonging to the service, are at the time béyond the Confederate States." Also " to proceed without delay to the Britîsh Provinjes,^' where he waa to report to Messrs. Thompson and Clay. A letter of C. C. Clay's, dated in October, 1864, addressed to Lieutenant Young, approved of his suggestion to make a raid upon St. Albans. It was proved that Mr. Clay had been for some time previoos a résident at St. Catherines, in Canada. There was évidence to show that the pi^soners resided in Canada prior to the 19th October, 1864, and that Young, in the &11 of 1863, attended the Universiiy at Toronto. Assuntmg, for the purposes of argument, ail thèse matters ixi be concluaively proved, their légal effect. could be determined only by a careful considération of thè law of domicil by a foreigner, a subject of one of the belligerent powers,in the territory of a neutral nation ; and the lawB of neutralitj^as a^ecting acts of hostility committed by him. The following propositions ami authorities were submitted as eon- clusive : — 6m. That prior to the Isommission of the offi^noe charged against Bennett H. Young and his assoeiàtes, t^e évidence estab- Ushed that they were domiciled in Canada, owmg tempbranr and looid alle^anoe to theBritish Crown, j)ubject to its laws, snd bound equally wiUi ail Her Mlyesty's subjeote to a strict observance of the l aws of nentrality. There w as no groan d wh atev er for the aaalogy atteipptéd tû 'be made by the pbsoner's counMl, between ^ "i**. ji '. -V •■ ^867 and the consec^uences resulting from it. VaS b 1 1 To oountry. Bound to the soeieto by their reaM^n™ tl. «. obUged .0 drf«,d ft, beoau» it g-inteCp^oUi'loS r ifi '!î!;''*^''^^'P ?t some future period'.'* 1 Ken 's S pitce ia, that the party is there rtmwo manmdL and it ia nJn h\l h e ^eUo4 : t I • \¥ . < f t-»<^'. ï. £P> 868^ th«; place of birth, becomes the test bf nation^ character, has been reçeatedly and explicitl^ admitted in the Goahs of the United i Sratés. If he • résides in a bellige^ent ccmntry, his property is liablè to capture as enemy 's property and if he résides in a neutral country, he erifoys ail the privilèges, and is subject to ail the incon- Vëniencesof neutral trade. He takes thé advantages and disad- vantages, whatever they may be,'of the country of his résidence. Thê doctrine is fottnded on the principles of national law, and accords with the reaaon Stfld practicaof ail civjlized^ nations." In thé case of the Danous (cited in 4 JRÀb, Rep. 265, note) the rule was laid doWn'by the English House of Lords j in 1802, in unre- siricted terms ; and a British subjeet résident in Portugal, was allowed the benefit of the Portuguese chàracter so far as to render lus trade with HoUand, then at war with^ngland, not impeàchable as an illégal tra,de. The same rule waS àfterwards %pplied (in Bell V. Reid, 1 Mâule and Selw, (726), to a natural bom British flubject domiciled in' the United States ; and it was held, that he might lajvfully trade to a country at war with England, but at peace witJh the United States." The effect of thèse authorities was to shpw that ail incursions upon a country where" civil war prevail were unlawful, and were to he considqred piratical incur- sions. Bennett Ô. Young's commission thgn was of nô avail ,whair ever, and he was amenable for this ofience the sametas if it was committed by ooe of our subjects. ^ Why should his Honbr bê calied upon to apply a différent rule in this case to a foreignei* from that whieh would apply to a British bôm subject ? Both had to be dealt with in the same ~way. Th^ ctocWine was founded not only on law but also, op equity. It w*s no answej; in the prisoner's mouth to say, Oh, 1 left Cani^ and went to the United States to commit this àct of déprédation; but I am a Confederatè sddier, and acted accbrding to insfructions ; and what woîdd be con- sidered a crime in a British subject,^ is justifiable, in my case. Such a -position was ajtogether untenabl». It was contendéd that Bennett H. Young was a duly commissionéd officer in, the service of the .Confedérate States, and that the polioy of Great Britainhad also b^en to afford protection to political reftigees.. This pretension, however, had no application tp^ the case, as the évidence established that he availed huûself of the asylum afibrded to him by his résidence in a neutral terntory, to commit dépréda- tions in a neighboring State on terma of amîty vith England. Thèse aots are .to be judged by the municipal crimmal code, being • also prbhibited by the law ot natio^. In suj^rt of fais, argument the leanjied counael citedr.l Fbillimore, p. J.90 — »*Upoii the aairyo pmciple, " ' " ' .•».._.- - a ri^t to a ff ord rofeg t ntè^lilw ^ , 6xpelled govemors, (^ aven theft^i^ of rébellion flying ^iào ^1 •' ♦•?. .» -^ .■-v" .^'^- T» ♦, .à't^'^'^i^ 859 . aBother country, she is bound to take ail possible care that no^ hostile expédition is concerted in her territories, and to give ail reasonable guarantees on this. subject in answer to theTmc^ ^ces of the nation from which the exiled bas escâped"' At^. iyi_ j^or it never can be maintained that however much a stnte maysaffer from piratical incursions, which the feebiress of the executive Government of the country whence they came render^ it incapable ofpreventing or punishing, that, until such goveiZeTt shall voluntanly acknowledge the fact, the' injured stfteTarno «7 •W/V'^'^u *^'* «"''""*y' ^^^«h ''^ neighbor's goverament admits that it ought to enpy, but which that governmeft is unai .toguarantee' At r, 304 was to be found the following portil ,-n ?Jr''\^'^'^"r ^^ ^'l^ I^yndhurst:-» Fôreigners^eSng m this country, a« long as they réside hère under the protection of ths country, are considered in the light of British subje'cts or J^ther subjects of Her Majesty, and are%unishable by theSnaï aw prec«ely m the same manner, to the same extent, and under the sam^ cfOnditions, as natural hom subjects of Her Maiestv " B^nP^Tv**" ^^ °i"th proposition, namely, that a^suming that\ 7^^ ; J^""g„^,^ » duly commiSâiohed officer in the service- of the^Confederate States-that he came to Canada for thepurpos^ of carrymg on hostihties accordmg to such instructions as he raight reçoive, and that his àéts at St. Albans ^ere performed in obedTefce I'srI '""rST^^^ ^^ ^^' ^°°' ^- ^' C Vs letter of 6th Oct£r! 1864; stiU the pretension of his Counsel that thosé açts were to be • K;Su!f f "^^f ^^arfarelegitimateWrformed in obédience to orders he waa. bouud to obey, and sucÉ as to entitle him to mmunity M a beUigerent 8oldier,%as altogether at variance with thé rules ef mteimational law. Thèse rules fumished a complète" Miswectothis pretension First: that a belligere^t state possessing nghte Qf sovereignty (which the Corifederate States did not) could not by^mmission or otherwise authorize acts, the performince of which mwlve a violation of neutrajity and the c^missidh of a S?°^tï. ^condly : àat Young ras n^t bound t«^bey such order ; ttie orddr itaelf màai m Canada being -a viplktiT° ««""try, but not before this Court. Mdett»tion ofhistenth proposition, that was, the charge against thff pnjonerg. The eomplail^ charged the prisoners with thfcîhne of robbeiy, m havmg at St- Albans, on the 19th October, ia64,'with force and violence, tabei|i from the persomof one Breck a sum of -;nïL-ivr*'^J'f apeaceful citizen, ùnarmed, and not engaged mhostilitaès; butpinrsuing his ordinary-busmess avocations He Ik!!^ ml *°-'' ^^*, ti^ ™o°«y ^ m a note, and there waa • robbed. ^ The pnsoners' counsel had found it necefisanr to invoke ^e «moient and extrême rule, that «rigbt of spoil or plunder extends m gênerai to ail thmgs bejonging to the enemy." But in th/tT/L* Çy«»*>«»« »°d authorities ah-eady given, established ^t the aot« of the pnaoners at St. Albans could not be, regarded wwlî! Jîf^^^:, i* ^««.'^ofcessaiy to diacuss the question, tX Jatextent déprédation and plunder might be considerçd justiA JMe, a« be^een the belligerents. It was, ho^ever, certeii that ^ fte prmoiple mvoked by the prisoners' counsel was at vari- ance with the rules of warfare, now recognised aad acted upon by ja*»OM, M shown by the foUowing authorities ; tb Vattel, PÇ. yy, 100, 1, 2, 8, and 4. Halleck, pp. 382, 8, 427, 456, 462 L's. ^eaton pp^86, 8 ; 596, 600, if 626. Liebe^s Instrac: tr^f^'lhf^' f^ ^' Ti l^' ï^" °^ C^uerilla Paries:?;. " nn ^ ; fi^*T ' ^î^'"' ^'^ ï^ebruaiy, 1865, Trial of Beïïl, W- »4 and 86 In conclusion, Mr. Carter said :— I would respect. Sji? ^PT^. ^.^"^""'^ "^^^^^^^'^ °^'^«* ^« directed to the coMWeration of t|e foUowmg pomts which are respectfully sùbmitted MconplMive. Is^Tbat the charge haabeenfÏÏhrproVedagainst Je pn8«»er4. 2nd--That although their leader, toLg, clS to ■ 1 1 'ÏS; » *l.Confederate States, his acts were not^iuSed rtj any aathonty thu Court can recognue. =ârd— Ojlàit the com- mwMonhe produceamust be disregarded, the Court beingbOundto ^ îï^Ti'^*^^*ï*- *fa« Confederate States hâve not beel ^cog^ J»a by «reat Bntain i» an Independent Sovereignty . 4th— That a»e inoursion m«ie from our tç&tory into the State of Verinont, M to be reMided-not only a^ â crime, punishable by pur mmncipd ï!' ï"*» ^««^w^d an act unlavrful and T,iratical ly intetnatioSl ' £' »™ .!»•««»»<>*. Pwtected byit, asaa actoflawful warfare. Jth— Iliai the birounwtances attending the comnâssion of the act ^rged^ixreipeptive of the above considerationfl, tested by the prin. wpxe» et mten a tioDal l a w, wwiiTnp no othof u hiritwtu i ihau .1 / f ■ "il ■T^ . - - *"> ^ffi" i«<«.'jÏS**5'* -^^ ^ beenltated that if the prisonet» were not «wwoMed, tbe oenMquences might be to invdve ua in a war with 362 .L i'^t' I t ih I r* the United Siâtes. Suoh an eveat is possible,, bnt I hâve reaaon to hope ît will not occur, The Xlmted States hâve a right to expect a fulfilment of our treaty obligationB — the strict observance of our declared neutrality, which proUbits our countenancmg the actsif the prisonera, which are not onhr a violation of our municipal raies, but also of international law^ I deem it my dutj, however, as one of the représentatives of the Crown, to disclaim dl intention to urge that considération as a grouad for extradition. It is very far from being Jhe désire of &e Goï^emment, to avert the conséquences of a war, b^Hîr^ustly offering as a sacrifice the liberty of any man. God forbid that tMs should ever be the case. Speaking as a trae English- man ought to speak, I saj that England, and her loyal subjects in Canada, ijould far soon» meet^war, witn ail its direfiil conséquen- 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 décision is looked lorward to with some anxiety — one laudable and prajseworthy, and which every nation and govemùpent should feel — the anxiety ,to préserve its honor and^wsed faith in the exécution of its convôntional obligatjfons, with other>nations. The honor and good faith of our Government is therefore in a measure involved in this inquiry, and they will not, I feel < confident, suffer at your Honor's hands. ■1 Bon. Mr. Abbott, Q. C^ in reply : \ When I f ev^ the immense accu- mulation of matter that bas beçn laid befbre the Court during thèse three daya, which it devolves upon me. ,now to analyse and discuss ; and the lengthy arguments entered into by the learoetl Counsel on the other side, to which I am now called upon to reply ; | the taak appe&rs of appalKng magnitude. Not so much on account of^ the applicability to this ctee, of either. the citations or the argu- ments, bjdt chiefly because of the enormous number of authors and books wnich my leamed friends bave cast before jour Honor, as I conçoive Wmost indiscriminately, and with but littfe regard to their ' .connection with the pointa of law arising in this case. And another, though a mmor difl5culty which meets me at the odtset, is, that my Içaraed friends do not quite a|frefi upon , the grounds upon which they demand the extradition of thèse priàoners. ^ Some of them ' think, ibr instance, that the reasoning of the Upper Canada Judges in the Burley caae was ri^ht, and some appear to thiiJc it was wrong ; though as a matter of course they agrée that the conclusion arrived at was the right one. Mr. Bethune. — We never said their reasoning waa yrong. Mr. Xîîoi!?.— -Wëll, T do riot khow" whoÊtt^ my léwmea frieni meapa by " we ;" but as I find thait the advocates ror the extradition ^ *^ 868 leLéT fS^n lu ^ ""^y ^^ J'"*^^^^ ^° claasing my four foenda opposite hâve expended a great deÏÏ of eloquencS gSd pos tioQ m which tbs country would Le placed, ahd upon thSsT i'' toous conSeaueûces which would resuit to it, if youTcidellôJ to ^ mcursions inU) the United Kta£7Z "uft^'n^M a perfect nght ft, make our neut^l territoi^a base forTu^to ; f ». • ■I V "/ \ t fit '■f '■•i -.» I \.> ■^\' 864; ■, / v^" • ■':r,^. :,. ^ ■.■;•-- Srises agûnstihe United States ; ah^ thftt thç nuûntehanO&^ôf sudi octrinea would end in involving ua in wap^ or in" serions quarrels with our neighbojW. Every one of my leariied friands tas urgèd or as- gv^ped, tha^ you must oither commit tkesèi men fmr extmditiofr under the A8hbi;àkni Treaty, or approve of the attàck on St. Albans ; tha^ yovL most hold that thè attack was perfectly justifiable i^nd legaï, a^ not" even an iufringement of our own laws, even though it had originated in «Canada ; and that yqjtf miïst interpose your sxf thority to protect the priaoners in their ûnlawful conduet ; or tliat yoi^must extràdite them. Bui ail thèse mei^Iy constituted some of tfae numerous fallacies which the Counsel «^opposite hâve placed before us, and they are net in i^he least degree more transparent thaa quuoiy of their fellows. We fnsi^t in the interest of ôùr clients that ^ou Are bound'to give effect to the Ashburton Treaty — but only in accordanoe mthks true intent aad meaning. We do not claim or argue that this att^||pBtt,St. Albans was justified by the laws of Canada. We do not ^^j|^^|^n<»* to hold, or assert that you ought to hold, that the Îrisone^BJHBRht to make Canada a base of opérations against the TnitedllHH^Pthat you should protect them in organizing expédi- tions froml^^pa into the United States ; nor do we argue that théy should be dis^arged on the ground that hostile incursions from Canada are justffîable by our laws. I claim that by discharging tiie prisoners, you would hold nothing of the kind. A décision that the prisoners are not liable to extradition, will not in volve anyjudgment upon the character, as regards the Canadian Government, of the act they committed ; nor wilj it décide that the prisoners may re- tum to the frontieï^line, and engage in a similar enterprise, retum- ing once more to Canada. Your décision will not touch any o£ thèse matters. The argument»iof the Counsel who opened the case for the défense wœL not that you should approve of what was done at St. Albans, but Ihat it was not within your province on this ocfiasiQi^ JfO t>ronounoe aay opimon upon it; that the prisoners' Govertiiiiieût alone had a right to deal with that matter. We say now, as befiffc;, that w;e neither ask your Honor to approve or disap- prove of the prisoners' coiiduct ; we are perfectly ready and willing to submit that to the appropriate tribunal when tiie proper time arrives. The décision we »eek will not require you to déclare from the bench of justice, that incursions from this coontry into the United States are jostd^blé or otherwise, or otherwise to give the sanction of your auânarity <» any^ act of the kind, or your protection to the prpetraltora of it. What the Counsel for tho prisoners contend for is not approbation of the prisoners' conduet, but a déclaration that i h e i f c a s e^ doea Mi fdA witMa fc» Adiburtm TreaQ?^- Wfr don "ask thi^ the TreflÉy be disregarded ; but that it be only made to af^ly to oiretinwtances consistent with its intention. This is ^11 1 / ■M:} 866 propoée to say on what oonetitutea a lareo pronortion of ti,- ^aa •of some of my leamed friends opposite ^'^P^'*'^ of the ad^resset There^iaanother part of those addreêaes whioh I vroime iaM^ mm stU moro summrily, and that is tho ext^^nlt^^?!^^ ^tuperation .with whieh we hâve been favor«d: £, ÏÏSMT 1 oontest I am nqt dispoeed to enea«e. If the arm.m«ÎÎW.ir leamed genUeouiarwhom theae^Srks mo^ SSvl^ï' were aa strong ae Wb epithets, I «hould be^^^to'd^^^ "tîlfut^i^ertSt' ^'^ '''-' ^ ^- o^ ^ aJS;;^ It aeéma to me that ia order to ««¥« «♦ « «««„„- v .. -Of the principles of law w^ch t^l t^el^Z Se'îb aecessary to disoover what the facte are : 3 to th2^' IS first apply xoyeelf. In presenting thèse fX to vouTho^ I Bhall endeavor to sta^ them eLîtIy and Mly n^ ieWHnJ à portaon of a document or a déposition, Sd^ÏÏnfu^f « oonveying aU tfae truth ;, but shV^ing thrlSlT^f eveïî eircumstancô put in évidence ; the leeaJ effect of 1*»^^ • A ®^ of the testimony, verbal and written, and trv to nlad^WrlJ*!^ Jî «ecutively before' you what it estabkhes. ffll^JÏf Jlî? '^^'^ opposite deny that you hâve any rigtt to enqSTfoufLtT that It w sufficient if a prima fade case be establSer h^ which they appear to mean that you shaU look onfv a/ Z feetethev choose to place before yo^u: and V^ yoA^ t't «nquire how far the acts with which the DrisoneL ar« !ï.o ^f flie Ashburton Treaiy. Mr. Johnson and Mr. De^C L^ KrHÎS,rh ' "^^ ^TT^''' ^ ^ consistent LitXUt the first they hâve insisted that your Honor was boimd tnT™?î fcr extradition merely upon a^deposiïï'b^Sg tS befo^Z Bhewmg that the pnsonera had entered the banV «f R+ i ii7 ' .J^ taken by vioJce |300 from iS^Br^k. t ^ï^^ Sb^T" hi'nlfto \'^ 'tf? '' '^' whiohTZk apS caoïe to this pomt, to show what I conceive to be reallv vîT» Honor'B duty m this behalf. Thèse authorities ^ ^ Vme Jh^ch, strange to say, my leanwd friends hâve cited^ ZxS^ dency. The Chesapeake and Gerity case sare &ow rf^whî«h fteseme n ; b,t t ha t you^B houïA^^t, if po«Hbâ, ^m^- Mborton Tre.^^ »„ «aUy oomnàed .t St ÂWb/thïJ >' . ■■■ i-: V ^ , ■ 7- ■ f . ".n « . X .3 1 'If >'mm^ t è •• '^^pw?^^^ .y - /^; - X / / ■ ■ i ' ' '" ' " * ' .. „■ ..* :. .„.. , • ^ ...... _^,/^ . ^^, ;■" , , ■ " > 1 -,,■■_ :■ ., " .:"' ' . ■■'' ' ."^ . * ~ "^ - ■ ' •* " , ■ » :'" ]' ' ^' .- ■ . ■" "'■■'' „ '" ■„■ *:,/■ ■ ■ ., t ' // ■■ '■ '' ■ ■" " ..' . /."' . .' " :.""' ■■■i"v ' " . ■'■ '•' " ■ ■ •• - ■ , ;'. ■ "•;■ ■■'■'■' ^ . ' ■■ 1 \f-'* '■■ ; '■ " - " H . ' . ■ . '/' ii- ' ''f'' ■*'■ i „ ■ ..'. -j,,;' -■ * - ■. ■ ■ .: ';;*•- ."■; .r ■ V/;;: ^ /'■. ., ' ^ ,•'.'■ ji " " „-"■ ■■*■ ". '.■ ■ 'y\: ^ "■ «. .. »" . .- '■ ' ' ■ - ,'"-'' tt '■ fi ..- j-\'. ■• .,'■■ n . ■ i ËB::>7'''~ '■ ■ ■' ^ ..■■"' ■ ' *■'■''» - ^ ■a *' ' . : ' -.':■■-'? "il ■ ' • ■■--.-■l,.....^,.— - ^ .. ■ .'-^ ., . >."'-.. ' »':"'■■■"■ ." '^■'V ■ /•■''■■ ; ' : . - * , ' ■, ■ ■ /) .-•■ __-."" *" ' . : ^ "■ - ^ / " ■ ■ ,"„''''' . ' * " .'■■ ■ Il ^ -, ■ - ^:.-:'>^.Jjf';...''/■■■ './;• " , - o , ^. 4^ y .( ■ ■ ", ' V ï j \ V A \ \ • • ? ' ' ■ ' ■' 1-^ \ -,.. ■ ^ ■ : v;^--'- _ . ^ *• ' h" ■ \ 1 \ « ■—"VT" ■■ • , '^ ■ \ . ' '^fLt 'U ■f*. *'**J ■■WuV'-.'^¥Z ■i.t .: « -.* IM>IGË EVALUATION TEST TARGET (MT-S) rà. 1.0 M 11.25 lis ^" L'orna M I'' Fliulugi'd[iiic ^Sdfflioes ÇorpQratiQn V 23 WKT MAM STMIT WnSnil,N.Y. MSM (7!«)87a-4S03 '^ '^. • y ^ j! 1 1 m . 866 > men, as charged in the information. And the first élément jy| this enquirj ia, whether any rQj)bery at ail was Vommitted. If it be not shown positively that there was a robbery. committed — if we hâve not «a corpus delicti^ the case is akan end. Your Honor would not commit a man for robbeir, unless you were satisfied a robbery had been perpetrated. xou wonld requirô proof that some oSènce had been committed, before sending the aceused to a trial. . I deny that a robbery was committed in St. Albana, of the description mentioned in this information; or that any offence whatever was committed there, for which the prisoners are amenable to any municipal tribunal whatever. There is no disputing the fact that ^e prisoners were at St. Albans on the 19th October last, that they pillaged the tov^^t it on fire in three places, and that in the skirmish a man war^ed. But I say, that pillage waa not robbery, that buming was not arson, that kilung was not mur- der. Surely thèse questions must be decided before ordering the extradition of the prisoners ; an of der whereby, if our prétendons are correct, an immeasurable wrong would be donc to them Avhich no trial in the Fedend States could repair, as their only dëfence would be rejected as insufficient in law by any court in thosc States. This is the view which I submit is sustained by the Chesapeake case. At page 46 of the report, Judge Ritchie says : " The dutyof deter- " mimng on the aufficiency of the évidence ia cast on the Magit- " trate or other officer. He ia the person to be aatiafied that the " évidence jtiatifiea the aj^ehenaion and commUtal for irial ofthê " penona accuaed. The amount and value of that évidence ia for " hia determinaUon. • ^ * Itia a jvtâieial diiere- " tùm toith teMeh he ia veated." It is to be observed that Judge lUtcMe was dispoemg of .an application for the discharge of the prisoner Collins, under a writ of habeaa corpiia, one ground of which application was, that the act of seizing the Chesapeake was a belligerent act, in the interest of the Oonfederate Statos. And he is arguing that he cannot be regarded as sittmg as a " Court of Beview or Error," on the décision of the ma^trate. Yet, he says, " if it was manifestiyjipparent that the évidence showed that no " offiençe had been committed, or that the party was unquestionably " innocent, and that, therefore, there was really no matter of faot "or law to be tried ; no matter in which a magïstrate could exeiv '^If cise a discrétion or judgment, then the case would be very diffe- " rent." And what woul^ <^adge Ritchie hâve regarded as being saffioient, to màke it " aj^Mirent that no offence had been com- mitted " ; that the parijy; "was unquestionably innocent V* Such as would leave the mafflgtrotejpo, judioial discrétion to exercise ; and would cioinpwl hiiBi wppHiWiii (>[>;j>iiiij to ninflhftigo tlm jH'ioiiiioi'n T Why simply, Ihatlthe prisoner Collins should hâve proved, either I '''•|.^iisi^l^Mi?l(£*,. 1 % . 867 « or r^^^ ^deliberato «pon: nothing for a Superic prove tùat Oollins and his party were "acting under a rpmil»* oonumasion," or" were beUigerents themselvfs "T" thaffh" e^difaon proceeded from thi Confederate Stetes.» If al tf î u *^''«\«??^t'o°s had been established, it is cleaTth^hl would hâve held that the magistrate had no rigL to coLît l,«? to brUd \y phesapeake caae, none of thèse conditiois were to be tound , the pnaoner waa a natural born British subiect • and nawai ?orn JJntish subject, who asserted himself to be a com ZtZ ?^ ^ ^^^"^«de'rate Navy ; but who failed to prove that he held that rank, and stiU more that he had either Set or mg that with a caae like that, Judge Ritchie felt that he coidK !S,^^* ^«„?»aff«trate had no factebefore him to iustifv the com .nnttel of Colhns ; for the seizure of the vessel was CeLble Td no légal pwof whatever waa offered to justify it. CC wouM fte Judge hâve acted how would he hâve held that ti^s magirtra to having ongmal lunadiction ought to hâve acted if «il S ^ ^ese éléments iad been comLed? l7dT^A^;ef coLit": of Am J were proved to exiBt, any one of whJch h7held wou ftav J SSS token the ca« out of the jurisdiction of the mSmte ? Galtf ^f^\}^''^^ thatCollinswas a commissioned offic^^of the Confederate Statea, and that he and his men wer? subS of S« sLt''™î^^£îrV*^."?"' ^."^^*«^ «^^^-^ of'theTorfedIrS: Ae temtog of the oth efbeUige'rent itself, twVtv'ilesVrl iS dSîL lu * u ^^*^ '*°"® '^"g ^y committing Collins for extea! ftj^l^^r^ P^*^°^«^ ^ ''^^^^^ a judickJdisc^tion^ m hoWmg the &ots sufficient to warrant that coLûtnrenSrin Judge, occasion to ducuss suoh a question? VM t,u m . "^1 i 868 The Chesapeake ease, therefbre, oleail7esimotbemad« available for the prosecution to shew that your Honor,' haviag prknary juria- oÛction in this matter, ought not fuUy to mve8(àga;te the fiusto of the case, and décide, in the exercise of your judioial discrétion, whether or no any suoh offence as that charged has really been oommitted. In the Gerity case the doctrine held by the Judges seems to hâve been the same. Not^mthstanding what Mr. Johnson has said, in regard to it, the language of the Chief Justàee of England, in dis- cussing the question whether or no tiiere was sufficient évidence to shew that the seiznre of the Gerity was made on behalf of a bel- Ugerent, entirely sustaîns n^ pretensi<«M. ' , " I agrée in everything Mr. James has swd," (says Ch. J. Cookbum) " as to acts with the intention of acthig on behalf of « one of the belligerent parties." What did Mr. James say? "•Pû-acy dépends on oircumstahoes ; and acts wlûch in a time of *' peace would be évidence of the crime, are not so whe» done by ri- soners for trial :'.' but why ? Because the sole evidenesHmeir belligerept character oonsisted in their statâng when^tb^^ized the vessel — that they did so on behalf of the ConfederadiiBS. There was no différence of opinion among the Judges of °Eilgland tike finish Jttâges^teskwiwx siderable hflBitaiion in deahng with their oase. They 4o not say-^ - ^ 369 r*?i* ^«Vg satisfied ihat if Sere hJîî^ ''^ **•« ^«*^ case, than tbe déclaration of Z m«n ÎT . ^^^ '^^ ™ow ewWe aiem^on iiatgromid aloneTSt L a iS^ J'.?^ ^^« dischargeS the Judges take into coi2ide«ïïlT ^^^ ™ England, thatall airordedbythedeclar.ffofC^^^^ ficient to warrant their h»teXrenc« lvi:^?°^^*^7^<>Wîtin8af mgwtrate who tried the^^ Tthrl^" J'T^ction of ihe thejr acted under an officer^^he ConLî^""" ^ P«>^«d that instructions from GommJoreB^^^^^'T "*7/' "«d« ^tten ^ any hésitation on the p«S of thXriitf ?'> ''''?^^*^«^ ^^^^ , matter? Their own rfKthaS^l/r.ir -i? ^^^^ n!^.^ ^î^'^^rit^rs on inteniationÏÏ;~the^^^^^^ of the Judge at Bermuda in the rZ.^*^ '^'^ ?^ J°<*«« R'tcWe : ment of England, as^viSeï^ed b?r| J^'p^^'i*^^^ ^'''^' hâve approvedof.—aU show fW+Z ^'^^ RuaseU's despatoh Wyrank ifnotWlïe'nSt^^îf,^^^^ belhgerent, is sufficient in iteetf t^ ^^î^ f S? .*«g^«««>r « a enemjm an enemy's territorl ArÎJf^ ^^ Iiostilities against an tention of my leJed^nZv^i^TTT^ '^' «««« ^îhe aï point, but to-'another rMm^^o^LT ^^ J^^ ''^^ ^ tWs efièct of the neutnd ch^ter^f theS«u^i'' "^ t^' «»PP««ed ^mg proceeded from nuetral teïSto^aL^^ to disoufls this point more at lenST^^bSl * 7^ ^® "^^ <ï° *he nature . ^ed by tte JuS^^tho^ S rc^f ^««/««i^ed, and Z l't df • = I r )« 1 ^f * r- %- î-jr-* ;■! ' ' "' If ■ 870. I hâve now periiape devoted more time than was absolutely neces- sary to the discuasion of this branch of the case, and I tum, as I stated I vould do, to the facta— to the actual state of the évidence as regards the position of thesé men, and their authority for what they did. Upon- thèse points we hâve had a great deal of discus- sion ; and it is proper that they should be fiilljr appreciated— for till we arrive ât some décision upon thèse, voluminous citations are of little use. In reality yfaa 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 éxistiiig between our neighbors ? what is the etatuê of the prisoners, and who are they ?— are they British subjects, as my leamed friends opposite prétend ?— hâve they acqùired a domicile in this country that ^eprives them of their national character ?— that divests them of their alle^ance to their ^)arent ^tate ? — Or are they citize^s of the Confederate States ? Is Mr. Young a subject and a commissioned oflScer of that power ? are'his comrades the soldiers as well as the subjects of that power ? Now I contend that we bave proved beyond dispute that it is the latter state of things which the évidence demonstrates to bave existed. / ,,. , • .1 • • ^ • The first document I shall refer to as estabhshmg this pomt is his commission, which reads thus (p. 80) : — CONFBUBRATB StATBS DP AmERICA, Wab Dbpa&tmbnt, Biçhmond, June 16th, 1864 SiB^ You are hereby informed that the Président bas appointed you First Lieutenant, under the Act 121, approved February 17th, 1864, in the Provioional Army m 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 aiid consent thereto, you will be commissioned accordingly. Immediately on recèipt hereof, please to iîommunicate to this Department, through the Adjutant aiid Inspèçtor General's Office, your aooeptanoe or non-acceptance of said appointment, and, with your letter of acceptance, retum to the Adjutant and Inspecter General the oath herewitii enclosed, properly filled up, subscribed, and^tMted, reporting at the same time your âge, résidence, when appmnted, and the State in which you were bom. Should you accept, you will report for duiy to (Signéd) Jab. a. Sbddon, Secretary of War. L" 3 n . Bennett H. Young, &c., &c., P.A.C.S. Thifl is a document whi ch undonbtedly, jy its ter dà, conféra on I Bemiett H. Yoûng the rank orFiiSt LiétttettMït in the prbvînônir ate States of America. Well, if tliis is not a ^ *s r.A'Sj; 871 , the Confederate States • it «w^T ™?°**« ^0°» «le Senate nf the benefit of aU theàe negaSb^t tt l S "f. ^î^'^ ««^ds Jf Ueutenan^rt S^^ .S?; ^ Sri?' ^^^^ *^ Xn rfMr. Young is not entitled,^der Sni ™i^'^*^ «PP^ite ^^:i£r-^^>^J'"^^-^««^erhei3ornot? ..«s-^ï What would a Judge feel hn„r.T * x „ ^.^ ''^ «istructed to sav v Gentlemen, the only evidenp« of r^ i *^"^ '^dresa the jury • Government, or eyïnofTCtf:eSÎT''^r' °^^ ««S recognize, is the decIaratioHfthf pl??*'''^^^^ /» «an thèse ÏÏnited States. UnS tha pf f î"**^". Government of : ;\8(HîaUed Confederate States are eiS 7' ^''^'' ^^^ the *^ «dépendent State, you c3t no J«ïi-^ to récognition as an . say whether another nation TseS «?' 'l^'^^^' ^^'^ J^nes, to the nghts of a separate stete Th^ /^* ''^*'^' ^« entitled to ^; the position and righte of a senaMte^Sl^ ^ ^ ®°*»tïed to disregard this commission Ym, iS^??^ ' ^^^^ °^'«t entirely n»e, and I teU ^ou that tî; law^Stf *" ^H ^' ^^^ ^ol commission whïch Mr. DavS^S i«îi ? ""''' "^^^ ^d forûial 1 paper in the eje of the h^' Ta^!f£ ï «^ Pi««« of blank a jaryjvas in erfect thos ch^ged bîjnl^*!"'*"'! ^ ^<>^ tbat m the Savannah case nnfîflVl^-t ^ • • S® ^®^n of New Ifort that the c^eo7j£"j^£^''^^^^<^^^; and î beKevé View And it% preclX b^S^ rb«r'1/«>°^ ^ F^nt of which every Jud^ i„ th{ FeZl SteJiT" ^u^?^ ^ ^e that my voice with sach nersistAnf f« . ®" "^'^t bold, that I raise jreten8ion,thatyoiSStoSïr "^^^^ *^« ^'^^^^^ or to exercise yoor judicS d^Sf ^ ®^î^« *^ document. ^MnJSnnof UwfuUy even lodtat îî T «"«f/f it, to a tribunal •t t 872 pTdse of huiaamty ; and to degMe «le poâtion of a Britûih maffs. Cte. exerciaing freely, independenay, ma mteUigenayJtfS learn- STid his judlmentf to tiiat of a iSrelmg scnbe, reoording, wxth KlSn, L^ases of a foreiga cabmet I sav, your fionor, ffitilyoûwhonowcan, and must, décide tiusqueetaon. Itwypu X m^t say wheiher or no, according to yo^^conacienfaoua behef Ma JtSge, upon the évidence before you and the la^j ti»w instru- meît eSher by itself, or followed by the other documente of record, ZmS. ^oung to the rank of a Lieutenant in the Confederate JZj A^à you must décide, because timt rank is an essentaal ïï'of the stete of thingB which, the pnBonere faun, taies from fc hands aU st«n of goilt ; and because; if ihat «tate of^g^ reaUy did exist, you bave no right to cause thèse men to be hajded Tv^ toiheir iltW eneiiies for exécution. I say for exécution ; fOT th^k commitoent nûght weU, be accomnanied bv Ae same SeZ reconnnendation tothe mercy of &e last and Whest Tn- bSTaffoIlows the last and mostawful sentence of offended human ^Se contente of ttùs instrument render it eaay to discover ita effect. " The Président ha» apwnnted yâU»?recommended for appointanent by the Senate; but that Ae pSirnt has appointed *him. He is not told tha Le jnU lïl^ from the confimSn hj ihe Senate, but that he yiû\ rank as lient, from the 16th June, 1864. . ,^ But tiie leamed Counsel «^ that there are conditions précèdent to tiiis appomtanent, and that there is no proof tiiat those conditions werTfulC.- % leamed friends are mistiiken There aijno Stions preceSat at aH, and there are no conditions whichaffect Sêrank of Mr. Toung, except the acceptence. He is directed to tSe^nath , to reporthis âge , his résidence when app(anted, and & tot^^rficEVeVas^mT If^ f^^^ '^•STr wjwtod it incorrectly, would he be for that reason h^le to be -> t"-: \ - 878 Nfh^gW he had /otlaken thS.^^or te.^,'*/?*'^^^ ^ CM^he had taken it conld tW L«„V- ^® **^®^ *« prore propositions bf my leamed friends in Cfora t^S *° P"* .*^® upon them superfluous. ' ^ '®'^^®'" 'easoning has recognised the Cartment, ' ( ^ «»chm> -r-'^ tj-Jà&fAuA-i -'«\'.' N ^r ^' 76 Mr. AbboU resumed. My léarned fnend, Mr. bevlin, has appeared' to r«Bt an objection on th^ groond that thia dooumeilt did not emanate from tho Prendont direct. But'no one is generally reoognised as beîng more compétent to décide -whether any named officiai aot Has been doi^e or not, t^an die head of the appropriate department of the publie service. No one cpuld be more com- pétent to èstablish, that this partioular^ was donc in a foreign conntry, thân the Secrctary of War fof fliat country. L-etapnose we should consider the Secretary at War for England the oest authority, as to whéther or no such and sach persons vrere e^v commissioned by the Government, as officera in^ the army of that country. If.we had written instrûctàons from the Secretary at War, or even from the.Deputy Adjutant-general of Militia, addre'ased to my leamed and gallant friend. Col. Devlin, as colonel of the Prince of Walbs Rifle Régiment, by his name and rank, we should hâve no difficulty in sustùning his action on those instructions, without requiring the production of his commission, even if his rank and the gulant régiment he commands ^ere less conspicuous than they are. And if a foreign country or Government, whether Fédéral or Confederate, were to refuse to recôgniee his action under those instfticti and are unworthy to be urged before any CSourt. It is necéssary, notlrever,*Since they^ave been started, to examine and to answer them, and I proceed.with them, as a task which-niust be completed. * .^ My leamed friends bave ur^d with conraderable eamestness that We must présume âiat Mr. Toung did not repojrt to the Secretary of War, his fige, remdence, &c., &c.,'nor take the oath, nor accept; because they say we bave not got authentic copies of thèse documents— and they say de non appar'entibut. et non existavtibM eadem evt fqiio. Now I baye aiready shewn that none of thèse prooeédings were conditions precedeirt to Mr. Young's holding the„ rank of lieutenant ; and as they were not, and were in fact mère rot^e matters in the department of war, thev were in no respect neeéssary to be produced hère. The jp*:«&.. k* xi-*^ — — -— . ^ «^ u«u ^ r^ ^' 1 >it~.Sàâ!'.v>-,. -.*• I- -s- ^. '} î'.. 878 mand for spécial service ; would he hâve sent hiiû by a dwagerous and circuitous route to a distant frontier ; would he hâve authorised him to draw rations and transportation allowances for himself and his command— and ail as incidents to a rank which he had not accepted, and actually did nôt possess ? And if he had. not accepted his 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 organîze his command from among the Confederate soldiers within the enemy's Unes, viz., at Chicago ; and in fact that he obeyed his instructions in the minutest particular. There is no better settied rule of law than that the performance of the duties of an agent implies the acceptance of the authority — and in fact conatitutes such acceptance ; if indeed so obvions a principle requires a rule of law to enforce it. But even if the Secretary ras null ; and that he was prématuré in sending him,by . way of the British Provinces, to operate on the Northern frontier cS the United States with which his Government was then and is Vnow at war ! Surely it is impossible that àay Court in a neutral country can assume such a position as this, and hold that officiai docoments issued by the highest officiai of another State hâve no value at àH ; and that contrarj^ to the neoessaiy inference from thèse documents^ conditions were imposed preliminâry to giving effect to ■ tibis commission, which were never performed. The question qf the yalidity of tins oommisnon from Mr. Oarter's p(nnt of view, I shall dÎBoass at a subséquent period of the argu- ment What I bave mtiiérto sud respecting it, has been éhtlrely based on îteelfj and on tàe, tiiree dnanmania issued from the > War Department But there bas been «urol trâtimony placed on re- cord about tiùs document to which I shall refer as sustaining my «lto_ t» 1^' s.»-i!*4 M. m 879 views. Adjutanfc General Withera Cn 9n«ï^ u • j- ' ^ Oarrol (p. â07>, Dr PaUen Tn 9mïV V^?' ^"g^dier General WaUace (p. 212\Baf^e^^in^^^^^ ont; ^^f^ ^^ ™tteu,.Uhe «™e fi™ and fa,„ed tût appointent ? ^ ^''* "" ^ ^^^^^"^ «^ acceptance of ftf éi.^ IT *'"'P*^®** » " prepared by the Secretarv of War at «11 • tf^ài ' ^^ ^*'*'** P*P«"' *»»* he had been il jjrî 11 -Lu i A^"« «1 ■'>•&*• ÎlS' ^h iK >, m * 880 Mr. Abbott.— The argument cornes to this : The Secretary of War had so much time on his hands as to infom Mr. Yoùng in three différent documents that he had been appointed First Lieute- nant in the C. S. army ; whence it is quite plain that the three papers were written at the same time. Now, to my mind it seems quite plain, that if the three papers had been written at the same sitting, Seddon would not l^ve thought of repeating the same mfor- mation three times. But whether it be so or not, no presumption agaimt the appointment can be drawn from the fact of the asser- tion of it being several times repeated. If it were so, however, J the fourth paper (N) would set the matter right. It does reaUy < sâgr— " Lieut. B. H. Young is hereby authorized to organiize," &c., ^d does not a fourth time inform him of his appointment. y With regard to the other piisofers, we hâve évidence establishmg theh- quality and posMâèn.- This is to be fiMi|id in part in a docu- ment to whîch Mr. Bethune takes much exceptlwK This document bears the signature of the Secretary of the Confe4erate States of America and the great seal of those States, and wîÈd specially di- rected by Président Davis in person, to be handéd to the Rev. Mr. Cameron, whom he appointed a spécial messenger to bring it to ' this country; and Mr. Cameron swears he delivered it hère in the same state as when he received it. After ail this, my leamed friend (Mr. Bethune) states it contains three forgeries. Mr. Bethune.— I did not say " forgery" at ail. Mr. JDevUn. — "Altérations." Mr. Bethune.— In other words, I say it ia a " cooked-up" docu- ment. Mr. Abbott. — Thatis not much better than the epithet I attnbute to you. Your Honor will see that the " altération," or " cooking up," consiste in this: that the document in (juestion has evidently been copiecrin a very hasty manner ; and bemg thç muster-rolls of several compai^es in the Confederate army, it consiste àlmost en- tirely of proper names, whîch are always difficult to copy cor- rectiy. It certainly contains many mistakes in spelling and transcription, such as "B. H." AUan,' for « B. R." AUan, which has been " cooked up," by being corrected, though Mr. Allan is not in this case. In fect, your Honor will see manv other iMunes, perhaps a tenth of the whole, sinùlarly " cooked-up.^* I shall teke the liberty, Ijolfever, of calling thèse corrections m the^ spelling of thé names,— inade, doubtless, in comparmg the transoript with the orignal. At ail évente, those papers are certified by the proper officer to be correct ; and it would be more charitable as well as m w accarate tosay that iàey «ffl« incorrectlv coî»ed in the firat instance, and that m the names of two of ihe prisoners a very slight change was made, namely, that of one letter, as ih the name of Tevis. .«•^•Sbl 881 -gr. ^«jA«n«.~.He ia Fevifl in both instances. Mr. Abbott.~-Oh no. There is a very sUght altération in one letter m each of the names Tevis and âVagfr, which tte le^ed gentleinen opposite sy were « cooked up ;" from whLhXy ^e n^y on the muster-roU. In the case of Huntley, it is said tJX ^f iStS?H B tT^^'*? *^^^*"^. °f HutchiSon were Xd tj ♦W^n ?• V "* *^®'"® "^ °°*^ê in the paper itself to indicate amt there has been any such addition. Thfe name is there bf^ ^T^' 7f' ^'^^^^•" That the document haa been p^ Mr. £efhune.—Bnt he swears his name is Hutchinson. TtSdof Willîa^ H^'n'!? ^T.^ William H. Hutchmson Xve«îon nf tr ?'^*^!^' ""^'^ ^' "°* * ^«'y extraordinarjr K but li •! ï * '^^' '°î^*7' underipprehension^ arrest, but whether it be or be not is of no conséquence to this case. The identiiy of the man aa William H. Huntief i^ p^ved W his passport and oral testimony, as also the fact thatUisTcileî ofÔeorgia and a soldier in the Confederate army. It is a^J? strange fect, however, in connection with the charge of « cm^^? un» the muster-roUs that ihe^arol évidence we%ut on3 S^^JV/'^'P"^"! «î.g«**i»g ^ese papers, exactly corres^nda Tu f ' .?' o "'^ ^^ ^*"" °^ *^^^ P*P«^ aithough it w^ iCt sible for tiie Secrete?y of State and'pîesident DaL wHk "^S^ mg them up ' to know what testimony waa^ ihen bebg give^Ê JJon^al. Strange to say, on the musteVroll of the 2ndifntucW Mantiy,flent us from Éichmond, butwhichwe did not get S ^i nnVatf ""Tf^"^ "^^'^ 'T? ^^ ^ feUow-soldie« s^r he was^a pnvate. If tins statement is true, where was the necessitv for the paper bemg " cooked-un » in Richmond ? And how d^î ttie Richmond cooks discover what had been swom to since Mr C^eron had left Caoïada long before Withers ^^£'eSnS^ And rf the statement is false, then Adjutant-Glneral Withera ^d Dr. PaUen hâve sworn felsely, and by 'some miracle, news of thdr up, to endorse thep pemiy. The same remarks, mSreover, apply to the case of Tevis. fie is swom to b^Chem^ulfs i^?% Ae n tnoky oavalr y. and the muster-mll «ho^ Bmnoiasf évidence Before thèse muster-rolls*' ^ras^ Bat we ha^ ame to hand, that the . - -~- "-.v»w «uwjo luuHMsr-rous came to nand, that the pn^new were Confederate soldiere, and it is to be fouiîd in Se il- ■p r • ■ b il 'h' iSiÎ2 ■^iMs^JHétlt^^ àiét 11' T'î '••?/ il r 882 testimony of Allen (p. 200), Botteswortb (202), Wàllace (201), Stone (203), Withers (206\ and Pallen (208). This testimony is qnite concluaive : yet the learned gentleman spent half an hour in trymg to show that the names of the men were ""«ooked-up" on the muster-rolls, though those rolls and thfr^arol évidence eScactly agrée — and though he aJid his coUeague hâve distinctly ^ènied any intention of disputing; and in fact could not diapiite,' the veracity of our witnesses. I would now ask your Honor to look ai Young's instructions, and see what their reid character was. I propose to examme thia affair from the moment of time Mr. Young proceeded to Bichmond and got his cominission, upon the recommendation of Mr. Clay, down to the time of the St. .A^^aos raid. I propose to trace out every particular of it, and ta show by the évidence of record, step by step, what was probably contemplated by the commission of Yoûng and his mission northward ; what he and his command were autborized to do, and by whom and how they were so authorized. The purpose for whioh Mr. Young was commissioned may be gathered from two sources of évidence. Mr. Cleary tells us that Mr. Young went to Riohmond with a recommendation from Mr. Clay for a commission, " for service within the enemy's lines, that is within the Northern States," on their northem boundary, and but for the objection of thé Counsel for the prosecution, we should bave had full information on this subject. Major Wîdlace states (p. 212) that he was in Ilichmond 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 Youna 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 tho l'ith June to " proceed" to the British Provinces, which would not hâve been the case if he had been in thèse Provinces at the time ; and we find him at Toronto in July, " on his retum," in possession of his commission and of his instruotions. If my learned fiiends had taken those instructions in thoir natnràl order they would bave been more easily understood. The first in order is paper N (p. 80), characterized by Capt. Withers as a dettùl for spécial service ; and as the dettôled instructions are not contained in it, it is called a détail for secret service. The second paper is the one which my learned friands read last. It is the paper R (p. 216), which requirés lÀeut. Young to prooeed to the British Provinces, and report to Messrs. Thompson and Olay for orders ; and the th^rd letter, paper Ofix . fl lftft\ d îrAftfai K ww tn ttmoafld ** bv tha route în diofttefl.** -tiiat is by way of the British Provinces, and to report to 0. 0. Clay, ^ïon., for orders, c^TÎng hiïn also forther directions as to lus corn- 388 mand and as to their organization, management, and maintenance Thèse instructions appear to me fuU/ to suat^ the opiiTn^at Lient. Young and his party were to ojerate against thïïorthem frontier of the Northern States. I am speakidg of Ss entireW n^spective of the question ..hether t^e Confedexfte S^reSÏv S War was justified m sending the prisoners hère, or in giviirilr Young those orders ; or whether in obeying them Lient W «ommitted a breach of our neutrality/ Am coûsidenW 3 redly wa. the intent and meaning of the orders issuK îf^ and I contend that his commission was actuaUy given to hhn fo^ the express purpose I hâve indicated, by his o^ eoverament^ that the mstructions given him in writing cleark StTthat purpose ; and that in what he did he was merely cirCg out tha to those Capt. WiAers describes as being l^own in the Confedriïte senace as partizan rangers, or small b^es of men iSfiSe pendently This party was to be organized within the etemyt temtoiy from among^escaped soldiersl they were to be fuSd Trii rruT'^i-' ^^J^'- ^^*^' to Ldertake s^ îenter SL tm%::T''^V^r' *1^ *^ obey implicite Ws !a f^k . ^l*y *^«^ «"esided near the border, the inference as to the nature of thèse enterprises seems plain. It couJd not hâve been m Canada that thèse enterprises were to take effect for ^LTi^ fr ^'*"?« V iHiitating fédéral agents in kitappbg people for their armies. The only inteUigible^ object in seE| J^. Young hère, and m authorizmg him to mise a plrty bf this del cnpùon, was to enable him to assal in some way thWels of h^ countay on their northem frontier. There can be no doubt the mtentionwas to atteck their towns; but whether ZwLto be doue m one way or m another does not appear from the évidence Whether it waa mtended that they shouldTage a guérilla waXe jnaintaming a.precanous existence within the enemy's bordeîHr whettier they actuaUy contemplated the use of our temW Ja^! not be ascertemed from the testimony of record : thougT Vhf'oXr ^ to orgamze m the territory of the Snemy would seeX i^lfte tt-*K Tn ^T«' f**"*""^** f^^ fro^ Chicago to St o^STnSî^^ ^"^S"^! ^^^""^^ ^^ ^^"^^'^ States, as only fot^ of the number areproved to hâve passed through Canada. How the way anpear. Bwtl am not at this moment deatinir with the auestion kir Jto n a t t er flfauufa h*t»iu » > a^ ci^T!^.^^^^X ^^^^Br .■«fi Bnfaah govemment; nor whether the former has or haa not «iven the lattor reason to demand satisfaction for violating ita terrikay » » : r r SàtMkfïétbii 884 * If it should become necessaty, I believe I can show that thèse ques- tions most be answeré^d favorably to the prisoners. I am not argu-: ing that Mr. Clay did or did not render himself liable to be sent ont of tWa country fpr having carried ont the instructions of hia Govern- ment. I repeat that îynah. to arrive at a clear understancUng'of the facts beiore I attemtt to deal with their conséquences. For thèse purposei then Mr. Young is required by his instructions to organisé a party 'f^witiiin the territoir of the enemy" ; the pwrty to be oftwenty men, " escaped soldiers as they are described in one J>lace, and persons " in àe Confederate service beyond the Con- èderate lines,'* as they are characterised m another. So far tiien I hâve established the appointment and récognition of Toung as an officer in the Confederate anny ; his instructions to proceed from lUchmond to the British Provinoes and to report to Mr. Clay ; his authority to raise twenty men from among escaped prisoners or from among persons beyond the Confederate lines bebn^g to th" Confederate army ; his directions to organize in the territory of ^^ enemy ; and to operate within the enemy's lines. Did he obey thèse instructions ? A short review of the evideçfce •will answer that question. Mr. Cleary déclares that he did report himself as dhreçted he retumed from Richmond in July, immediately after havi ceived his commission at Richmond upon Mr. Clay's feco dation. . . 1/ Mr. Bethune. — Does anybody prove he ever was in RicMmond ? Mr. Abbott. — Not from having actually seen him in lUchmond. But it was proved that hé was in Toronto early in the spring of 1864, T^hen he was recommended by Mr. Clay for a commissioaT ; that he léft Toronto in the spring with the declared intention of ^roceeding to lUchmond } that he was in Halifax in May on his way to Richmond ; by runmng tne blockade ; that lus instructions in Richmond in June required him to " proceed" to the British Provinces , and his re- tum to^ Toronto in July with his commismon and instructions is spoken of by Cleanr and by other witnesses. Thesè facts are suf- ficient to prove a side issue of this kind ; and the only évidence to the contrary is that Young attended lectures in Toronto in the fall and, winter of 1863. Mr. Bàhune. — And in 1864 was living m Toronto. Mr. ^Wott.— In July 1864 he passed through Torijnto, rep<»t- ing himself tb' Mr. Tht)mp8on according to lus instructions. Mr. Cleary's testimony fiilly explams ail that. But itis also proved that before the raid waa planned, he wïis actually in Clncàgo, in the capacity of à Confederate soldier, oombimng with Ws brother sol- "~dîerB and their frieùdfl «id^iÈies tiiere fertile purpose of breakmj^ into Camp Douglas, and of releaâing the prisoners there oonfined. 385 " • '. Counsel opposite prétend thaf M^ vv^ u J" ^^'^' ^et ihe a Britiflh subject for ft^ «m« v *f ""^ character ; and was breaking oS of the w wh^'? T^^T/*?" ^'^^^ «^«« *he lâeutenlnt, after ZZ^^^^ " promoted 4rom a private to a temtoiy of that el^Z%^.e^ Z^^^r''^'' «°*« ^^'^ ^ ^^ pared to péril his iZ t^ TcE'F ^-^ ^*^' \î«" ^om di^s;, ding of deS- afr RÎPh^n^ • f^^*''°''®^*<^ andhisiMS^Mfrom^^^^^^^ 7^l^P»g ^is conunisiSi , at St. Alba^b Octob^jf ^'!f3S^^^^ " domicUe" waa tbe « S ofhî« nT^ tl"" ^*^^* = <*** <^ beoame incapable of lelS îS-Sf^^"?* ^^'ï^**' î and that -fcfe to assert p,^S^oSî^d%;fr/ "^^ ^\^^™» 'S*»*^^^ the authoriti^Tnor tiif eSce° aî5^*^^^^^ '^ neither sustained by eense and to commoriSr fn fel ïf *"" '^^°^'^« *^ ^'«"^o^ equidistant fi«m th? CL W If '^ -ï^ propositions about HtaesustainedbytiLZ'asny'rolV"^^^^^^ ^""'^ ^' ^ i'JÎTmefl ^tet^'â^^^^^ -y leamedfriend Départaient of Stato^at Richmo^^^i:''^^ "^ ^ """P^^y^ of «^e Thimpson at Torrato ™«v«- fw^'^*'"^ *^ Sécrétai^ to Col. • 211, 216),JrdTrhe left tL^'^ïï*^.""*^^^^ ^PP- 210 (Cleaiy, p. 211 ) ' «^"'«ds to wport to Afr.^^Clay. Bn^ JS^lfejf r.i?^ ^*T<^°°« <« Proceed to the wards weS lit Sl^t^ gentlemen an/shortly after- vention held there. ]ff Xé J nf7>. "^7^^ ^"^^ ^^ ^on- mte floldiers at Chicago î«E ?f ^Je «ndezvous of the Confede> and thev àyelB^S'ntT^''^^^ Bettesworth and Stone, paratio/f^e att^of St lFb3^'î,^^^^ ^«""«^ Pr«- L ^<, I I « t Tfl il iJ^ >J' 'H -; — trS W s ",i - '.<« i! iXUlt^^ • ."^ < Mi- . M 886 time and plaoo at which the raid on St. Albanfl originated. The enterttriae thenplanned ia deflcribed and provè'd by Betteaworth and Stono. \ a x. i. Mr. Betteawftrth is the peraon who was arrested without a war- rant, on a charge agwnat him at Quebpc, on auspicion of boing one of the digcharged priaonere. After proof had been made beforo Mr. Magaire that he waa not one Si thiem. he waa tranamitted in cuatody to Montréal, where he arrived on Friday moming, and waa confflgned to the gaol — atill withoùt a ahadow of a charge againat him, and ratained there among common malefaotore, till the following Tuesday, when the Counael for the proaeoution, atating that they had no chalge againat him, called him out of the dock into the witneas box. They doubtleaa hoped that hia intimate rela- tion with Ae priaonera during eight daya of incarcération, had led to confidencea which they could force him to diacloae ; and the idea waa certwl^W mgenioua— if not remarkable for ita delioaoy or humanity. On étoaa-examination Mr. Betteaworth tella ua (p. 138) that during the convention at Chicago in Auguat last, there waa an organisation going on there for the releaae of - the Confederatç piMonera at Camp Douglaa, ia which Ybungand Smrr took part. He waa aware that a raid waaVheing then orgamaed there for. the purpose of plundering and bummg the Northern towna on the frontier— and that Young and Spurr were en^ged in that orgam- aation. And when afterwarda examined for the^efence (p. 201), he prorea that the fact of Young having a commiaaion, and of his collecting a party with the authoritv of the Confederate Government for a Kud on aome point of the Northern States, which he waa to lead, ■waa then perfectly well known among the Confederatea in Chicago. He further provea that arma and material of war were atored in Clucago for auch purpoaea, and that theae raida were intended to aerve the Confederate Government, and not my private object. Mr. Stone (p. 203) ia atill more explicit. He waa alao with the party at Chicago, and he waa aware there of the organization and of âe whole plan of operationa. He was applied to, there, to jom Young'a party, by Young himaelf . He knew that Young waa to be the commander of it ; he waa ahown the inatruotiona to raiae it j he \ra8 aware that when it waa coUected, a report waa to be made to Mr. Comnùaaioner Cky, whoae iaathictiona were to be their gmde. And finaUy l»e knew that the requiaite men had beenobtained, and that St. Albans waa the point aimed at. . , , , ^, ThiB is actoally ail the évidence of recoçd, with référence to the place wherethis expédition waa or^mized ; and I would like now to be informed where my leamed firienda oppoate find the proof of "^"^ftetr tiwy" twrt â â d àfl a ggert witlr^«a^ v^ieaeafle^ tbafc this St. AUwna raid waa organped m Canada. Where ia Ûiere in the ft- u^-'^iT' oÂ'i^i^ 887 expédition wMenga^TnC^îda^Z^^^^^ ^ of tbis Canada, or that KiL« k rt;lt*ÏJ P»'^,7«« o^ganized in €«àada. beyond Mt.^'IVb co-^^^^^^ ^tu/ci. '^"Ir"^ Johnson assertBd b his speech latZ S ♦i/ ^i*^' ^• «authorised in Canada^ Keeded S^J^^^ ^^ expédition was to Canada." I venh^ toC th« IST ^'^^-^ "°^ '«*°™«d heZie^^^;7^;",^St"i^^^^^^ of an expédition of this kbd ^ cTi ooS •'' S' P^-g^^atipa .. çoimnission of the commrd;r ? If dZ ,V "^"^ '^ ^' in Richmond. Does it coS în fhl - ? Z- *^ ""^ organized for the purpose Tenterirln iU Tf^'ïr *" ^^« ^ P^^^ in Richmonr Or does it coE t\d ' ^ *«^ ^^'^ P^a^e and in the engaKemeS of Te ™1 / "rangement of the plan, ail took place â ChW And tl^« ^"^ ^^"^ '" ^"* ^ ^"* *^'^ stood b/the organtTn of^^u'^^:,^^^^^^ thiB pomt is in the most nositivA tarma i^ • ^^ «vidence on sofaraBtheevidenrofC^'^;^",^*^^^^^^^ and Yonng and hi» men' ever met a^' tiU f?! H°^. *°, '^«^ *hat vous at St. Aibans Th« nL% ' ^^^ '"^^^^^'^ *^o rendez- «o£rs who hiSt;a^'fi5X:iemv^f '' -Confederate ,it was « organized witC thV tenitorv offh. ^P^P'^:^ ? ^^ ^') J«.<1. aot k^^^ i::^^*^fl^f^ S||fc?«lln. part,. •i f • I » » / 3 l'-â' /T^ l&f3£ ,«,>>. _s ♦ 888 II II i m intention to attack the Northern frontier of the Fédérais ; but ^e do not know the précise nature, of his private instructions, being aware only that he was to report to Mr. Clay, and take detuls from him. The well defined nature of Young's intentions when in Chicago, lead to the ioference that' he knew what he had to do, èither from Mr. Clay or Mr. Seddon, — ^but whether he did 6r not,^ he had a perfeot right to exercise his judgment m selecting his point of attack, so long as he was careful to get that 'sélection approved by the proper officiai before hé acted on it. He knew that the intention was to attempt to carry thp same kind of warfare into the Northern towns whioh'was practised m the Southern cities by Northern troops. And the expédition to St. Albans was sug- gested and planned b^ Mr. Young himself, and Mr. Clay, und^er the authority ^ven him by his wvemment, approved of it, and required it to be carried out. The dhrecC written authority for this particular act received from Mr. Clay is tobe found at page 20& of the printed évidence, being paper màrked P. Xt is as follows : i "itfew./or Ideut. Bbnnbt Youno, 0. S. A." " Your report of your doings under your instructions of 16th Juno . " last, fipom tiie Secretary of War, covering, the liât of twenty " Confederate soldiers who are escaped prisoners, coUected and " enrolled by you under those instructions, is received. " Your suggestion for a raid upon accessible towns in Vennont, " commencïng with St. Albans, is approved, and you are authorised " and required to act in conformiiy with th^ suggestion. " October 6tii, 1864. / "C. C(CLAY, JUN., " Corkmùsioner 0. S. A." The évidence of Dr. Pallen (p. 209) and of Mr. Cleaiy (pp.^ " 210 and 211) prove the genuineness of tiùs pèper, and if more were wanted, there are numerous circumstances confirmative of i^ in every respect. Mr. Cleary (îoc. cit.^ was informed by Mil^ Clay himself a éhoict time after the raid occurfed, that he had authorised it, and that his authority was ii0m^g. Mr. Lewis Saunders (p. 217) was présent at conversations between Mr. Clày and lient. Young after the retum of the latter from Chicago, in which the buming and pillage of SfTAlbans were discussed ", and he knows thai Mr. Clay âdvanced Lient. Young f 400 for the expenses, as the' instructions authorised him to do. Yout Honor^rill perceive homperfectlv consistent ail this évidence is with itself, — ^Mr. Young reports his doinas and.lûs list of twenty nmënTë nrol te d at C hioagar ww he Badcerltar «ugiiestions^ fi^ nûd où St. iJbans. M çf which is in exact accoïdance with ^ li i (» ^/j ' 9* "j-^v -**'3V^ Kl , « - -i *. > aV. • 889 Mr. sJZ^ '""^ " "^<"^ by «>o instrucUoM f«m (W.^Tf ^ 'fit "^ ''°°""' ' f»™iii»ble document' and m»leani«J tarisfèffE-^^^'^^crdrî^""^^^^ Sn: ff r''" Government, under thMo^L^.^Jd ?med b4re votT""'"*' ïi *ï^ instructions he hefd Z S encjuiries àbout the fentleln wL siJ ?t H^ri"T'^ indignant tones wherftr p pÎI " , ^®**,"-. ^® demanda m •mêmmi- »<*,tdl. G<».et™orderedtoIe.™ the coontry, whichCud 'II' î^!fc3:NïiU.^ . .^l*^^,-'. 'JvA'- "^■*-. \!t»- f^ J "W Ali ,1 ' A 890 . but ,nd one ever pretended thatbecaïue hè was temporarily recading in the United States when he issued them, they were suoh an abso- lute nullitr that those acting under them were pirates. ' But the doâtObent m this case is in reatity no letter of marque, and bears no analogy to such a letter. , Mr. Bethune. — Will my leamed fiiend ppint out anv case in , which Genet's privateers were deolared not to bo pirates ? Mr. Abbott. — I st&te that Genêt did exercise that au^thority as fepresenting the French Government, and that he was sent out of the United States because he did so ; and I say further that no persbn •who acted under those lettérs of marque vas ever charged with ôr convicted of piraçy. Mr. Johnêon. — ^That means that no English vessel ever caught one of those pirates* and took him prisoner. Mr. Abbott. — What I stàte is a sifnple fact, that instead of G«ndt being extradited, he was merely ordered out of the country ; and I say furthèr, that while histoniliiiànd wiiters on international law bave discussed the conduct of^r. Genêt, and declared it to be iUegal, no dictum is to be found in any of them to the effect that acting under those letters of marque, destroyed, in priva-, teers holdmg them, the character of beDigerency. New vrith regard to the date of the document, I refer the Court to t)ie case of Hayès against David, where this doctrine of an acte sous seing ptivéj having nd date, is discussed and settled. The Co\urt çf fieals, in Ûiat case, took the view iiiat in the absence of proof of d, the presumption waa that the date of document was correèt. this being a.eriminal matter, English laws must be referred to ; and if your Honor requires authority from that law, to allDw that the presumption is that ail documente vrere made on the beardate (1 Taylor, p. 158), I cailpoduce it. (His ' understoodtto cuspense with jmy further autiiorityon ( Mr< Johnaon, in his tum, ^ves us his particulaf view oT^per P^ and it consiste in a véhément burst of mdignant déclamation at thiyie^rpattion by Mr. Clay of the iunctions of our most gracions luineness of the paper is concemed, however, Are preÉumption : we can trace it back to the itself L|^ ^- ^eary swears that innnediately lîr. Cl« | te M ' m e'd him ÛaA he had j^l^horissea ihat tiiôauthority was in my haads. Mr. Beihune. — ^Do vou call tiiat évidence î„ Mr. Ahbctt. — ^I say it is perfectly good évidence. I sa^ that no i tt wr »n^cc cowL be^ pa» d^eàr famehing^^he^^aa^qmt y < ^ j l iper, tfatin that at the time ôf its date the alleged wiiter of it lleseiibed it to a tlûrd party, and stated where it was^to be found ; ' des ^;tf^i!vW ^°«^« ^' a°d says he was îv fW P*'^ ^^ Confederate Govemi^nt , that he was"appointed by that Goyemment a Commissionerlbroad,— and that that was £îl ïî '""m °**'™.*'^- " ^ *" Peisonally aware df that fact," ï^iL WK "^1 ^^.,?* P- 212 he adds, « the said Mr. Cky « IZ^^ * ''î'^ '^^ "^^^y °®<'«''- He madrÉs reports to thi « w K ^^P""'""®"*' ^^<^^ ,^88 the civil department of the State ; « i V • .^ *™P^® ,rY®" ^* civil and militaiy : but he had no hPa ! ^' ?*^ . Y*« **»«»» ewrcising the authority of a Con- V ) m V Li^Wk&Mb-^-.' KS. Mf 4. f hll'bl ^894 With such Mormation as ms before him, I thiok that my learned friend, Mr. Devlin, might hâve spared us the réitération of his first question. Or, if he felt it essential to the interest of his cUents, or to the contour of his periods, that he should ask it so often, or ask it ail ; that he might hâve answered it also. The other questions respecting Mr. Clay may^be as easily and more shortly answered. He came down to Mon&eal at the time of the trial before Mr. Coursol, to give his évidence, if necessary, on behalf of the prisoners, and hé remained in Canaiia till they were discharged. 'Ànd he was heard from, by Mr. Cleaiy, at Halifax, in the end of'December last. I regret that I cannot further gratify my learned friend's curiosity ; and that I am unable to give him ^ny further information about Mr. Clay, nor, in fact, about either " that money," or the fa;mous carpet bag, which was sup- posed to contain it. I think therefore, that without fear of contradiction, I may safely assert, that we hâve proved that Lieut. Young did receive instructions from Mr. Clay, as Confederate Commi.ssioner, both verbally and in writing, to make the attack upon St. Albans ; and also repéîved from ^ him funds for the expenses of the expédition. Wil^KTeference to the attack itsélf, your Honor will recollect that t^e only trace we hâve 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 an^jl party ; and on the train from Toronto ; and that of himself and three otiiers of the party at St. Johns, in the begmning of^ October. That is the only évidence to support the often repeated assertion that this party of twenty-one were organized in Canada, and proceeded from Cana(fai. 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,-4^y what light is it that my learned friends reiterate it so persistentiy ? In fact this is ail we hear of the expédition tiU ^e leam 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 thèse: The party appears to hâve met at St. Albans. at il^ préconcerted time. In the middle of the aflemoon they took possession of the town at severkl points, at which they placed pickets ; they seized apon several^f Ôie leading citizeçs whom they placed nnder guard in the principal square ; they set fire to the town m several places ; seized upon three of the banks, and pillaged them ; and, while so en- gaged, took from Breek a bundle of note8,^hieh he broug^t into one -m thera in his himdï AU thèse aots, from begimûng to end, ^y declared themaelves to be doing as Confederate soldiers, in retaliation for outrages committed by Northern soldien in the Confederate States. , A'- .f,.J UJ^ l' i}\ 895 M'.Sethune.-^Dii they take awajr any prison^fs ? Mr. Ai>b0tt;—^o^ihej did not. They took possession of the town, çiUaged, and, as far aa they were able, set fire to it. If they couldhave done so, they would, doubtless, hâve bumt the whole of it. They did aa much mischief as they could, tiU driven ont by the citizens. My leamed friends are difficult to please. They hâve ^red us with glowing dénonciations of the outrages committed - *W®A^ ' ^®* *^®y ^^^ P®®*" *° complain that the dignitaries ^ff*;-^*^*^ ^^^^ ^^^ bundled upon bare-baeked horses, and hur- ^:ge« mto Canada. If they had been, we should hâve had outcries Jom them, which would, if possible, hâve surpassed in véhémence those of my leamed friends; and I hâve no doùbt their feelings ^^ÏÎaa ,. "^ ** ^®^* ^ ^"*®- ^"* I say that a town of 3,000 or 4,000 inhabitants, twenty miles within the Unes of a hostHe fron- faer, oflfere mmj difficulties to its capture by twenty men ; and that it is not surpnsmg that, having held this town half an hour ; having done their best to bum it and injure its institutions, they should be dnven from it by the citizens. Nor is it astonishing that one man waa killed m the skirmish. And this is the horrible murder— the frightful slaughter— that mv leamed friends on the opposite side talk so much about. And I présume that it was with référence to> thifl that they cited their authorities from Vattel and Halleck, to prove that assassination was not recognized as being lawful, under toe law of nations ! They deny that the prisoners were fired at. The facts are stated by a witness we brought hère (p. 216) ; and" he haa smoe been arregted and put on hia t^Ed for treason, for so stating tmthfuUy in évidence ; who tells us that he foUowed them along the street for a quarter of a mile, firing a revolving nfle at them as fast as he could, and that other citizens did like- wise. We hâve also proof of numerous shots being fired and reports heard ; and from the description of the whole scène, even by witnesses determined to say as little as they could, and from what we know must hâve occurred under such circumstances, it is plain t^t the citizens rose in every direction, and that the little party waa driven from the town by overwhehning numbers. And it was m the midst of this confused street skirmish that Morison was shot. If we had been in a position to give evicLence of the fact, we codd hâve proved that the prisoners were driven out of the town, mtb;three men wounded, one of whom languished for weeks in Monfreal under surgîeal treatment, and we know that the casualties oniàe Fédéral ade consisted of one man killed, and one man woimded ^ bothin the street, in the exchange (rf^Aotsbetweenthô^^ lojffle parties. This, I repeat, is the horrible murder, and the nefiuTous robbery and pillage on which my leamed friends opposite bave expressed themselves so forcibly, and wWch they havft 'il I ij s il .iafei,jf, !■! H ih 896 denounced aa aomething porfeotly unprecedented in atrocity. What ! they say, burning and pillaging an undefended town and unreaisting citizena, a hoatilo act! Such a doctrine waa never heard of ! None buty Southern félons and rebela could poaaibly be guilty of such ; and from crimes like thèse, offences against the laws of nature and of nations, the enlightened and humane principles of international ]aw,now obserred by ail civilized nations, withdraw the shield ! This, vre are told, is not a raid. Pillaging banks, and setting fire to the town, are acts which are not covered by instructions to mako a raid ! I do not know what kind of harm- less military évolution ia conveyed by the tenn " raid" to the minds of my learned friends ; but it ia plain that they require enlighten- ment on this point, and I will undertake the task of instructing them. I will read to them from a Fédéral book a description of a Fédéral raid. A raid, which my loamed friend Mr. Bethune, I présume, vill consider an act of war, and, porhaps, even an act of war «er se —a kind of act of war of which we hâve heard a great deal both from him and Mr. Johnson. No doubt the last named gentleman will be pained,yet amused, at the " ludicrous extravagance of the pretence," that in coing 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 whom I am about to speak " can be presumed or believed to bave acted as " a military force — having lawful authority from a brave and civi- " lized people for what th«y did." Those notions of " wariike achievements and martial glory," which he has formed, will reçoive another 8hock,.when he learns how the Fédérais, whom he doubtless believes to be modela of modem belUgerents, carry on warfare. Unless, indeed, he adopta the doctrine -of Counsellor Sowles, (page 145), who being exatomed profeaaionally for the prosecution, gives his opinion as a counsellor-at-layr, that the act charged agamst the prisoners, if done in Georgia by Fédéral soldiers, under a Fédéral oflScer, would not conatitute robberjr — because, he savs, Georgia is a State in rébellion against the United States, and Vermont is not. Indeed, the adoption of thjp view of the law by the Counsel for the Crown, would not be more remarkable than the mode in which "watching the caao for the Crown," is exemplified by their speeches. But I must prooeed with the deacription of what a " raid " is, as practiced by my leamed friends' cliente. I shall read from No. 42 of the Rébellion Record, a New York publication, of reapectable character, which I peroéire waa frequently referred to for information j n New Yo rk , oq tU trial of the cre w of the Savannah. The es— pedition I sjjeak of waa commanded by Mr. Montgomery, a Fédéral officer, who ia sud to hâve prooeeded up the Altamaha river to the m 397 viUjge of Darien, on the llth June, 1863, wth'ç, pàrty of neera Mldiers «to présent his compUments to the recela ôfGeoreia '* No motive is stated to hâve existed for this raid, nor does aily order appear to hâve been given for it by any officer of rank Danen waa 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 thfew shells mto it which drove the mhabitants « frightened and te'rtôr-stricken in every du^ction. Not an armed person appeared to dispute his landme or offer any résistance. ;' ** « Pickets were sent ont tô the Hmits of the town. Orders were then given to search the town, take what coul(ïbe found of valu© to the vessels, and then fire it. Officers then started off in every direction, with squads of men, to assist. In a very short timo every house waa broken into, and the work of piUage and selec- tion was begun. ♦ * ♦ * Soon the men began to come in m twos, threes, and dozens, loaded with every species, and ail sorts and quantities of fumiture, stores, triukets, ete., ete., till one would be tired enumerating. We had sofas, tables, pianos, chau^ mirrors, carpets, beds, bedsteads, carpenters' tools, coopeV tools, books, law books, account books in unlimited supply, china ^^ sets, tmware, earthenware, Confederate shin plasters, old letters, papers, ete., ete., ete. A private would come along with a slate, yard stick, and a brace of chickens in one hand, a table on his « T^' ™ ^^^^^ ^*°** * "^P® ^^*^ * ^^^ attached. * * • '• Droves of sheepand cows were driven in and put aboard. * * ♦ Danen contained from seventy-five to one hundred houses— not countmg slave cabins^ of which there were several to every house, the numbér vanring evidently according to the wealth of the propnçtor. One fine broad street ran along the river, the rest starting out from it. AU of them were shaded on both sides, not with young saplings, but good sturdy oaks and mulberries, that told of a town of both âge and respectability. It was a ^^ beaubful town ; and never did it look both so grand and beanti- fui as m its destruction. As soon as a house waa ransacked, tho mateh was applied, and by six o'clock the whole town was in one Bheetofflame. * • * The South must be conquered inch by mch; and whatwe can't put a force in to hold, ought to be ^ destroyed. If we must bum the South out, so be it. ♦ * • 'I We reached caûip next day, Friday, about three p.m. The next mommg the plunder waa'divided, and now it is scattered ail over ^^ camp, but put to good use the whole of it. Some of the quartera 'ffy ^ook princely, with t h e ir soft», divans, pyn<^^ tej^' This waa a raid ! and what is more, it was a Fédéral raid ! and what is more still, it was described in détail to the Fédéral people -lùso >» ' .«' tr'> *5 » é -> 11 ■.L. r**wt^:?^ * Wilt*#\ïf"fl|ifllÇ 898 eém ■with pride and exultation, as a " bold, rapid, and succesaful expé- dition." To an impartial eye it certainly does net présent many of thê featufes of boldness — nor would it seem to possess those characteristics of "warlike achievements and martial glory" of which my leamed friend bas spoken, and which according to the ténor of bu argUMeut would bave to be présent in every hostile act, to save tbe beuigerent from the punismnenf of a félon. The whole affair seems to bave been the idea of an offîcer in coùimand of a régiment ; and his " programme " is cooUy stated to be to carry off i^l he coiild, and bum and destroy the remainder. He takes with bim a small veÉsel for the purpose of carrying away the spoil. He enters a ^seaceful village from which most bf the inhar bitants bave fled, and where he met with ^o résistance ; he sacks every house, çarries off everything w*rth hî^Ving, and bums and utterly destroys every building in it- of eveiry kiryi and description. I hope my leamed frie^s now understand what a Taid is — and how far the instructions ot Mr. Clay to make a raid on St. Albans, authorised the pillage of three banks, and of the complainant, Mr. Breck. K danger and deadly strife be éléments of a hostile act, I must be permitted to claim for the attack on St. Albans a more perfectly warlike character than that upon Darien possessed. If the test is to be ^he extent to which wanton destruction and pillage of private property were carried, I cheerfully yield the palm to the " warlike achievement " of the sacking and buming of Darien, and freely aHmit that Mr. Montgomery àcquired thereby more " mar^ glory " than fell tb the lot of Mr. Young. The sacking and buming bf Darien gives us an excellent practi- caJ exempiification of the doctrine of the Fédéral States as to what constitutes an act of war. And it forms the best possible com- mentary on the scora, the indignation, and the horror, which the leamed Counsel bave been at such pains to express, at the compa- ratively insignificant injuries inflicted by the prisoners upon the town of St. Albans. I f^j that I can find the record in this book of a thousand times worse acts than the St. albans raid, committed in a thousand instances in the South, by Fédéral troops, since this was began. r Mr. DevUn. — That is beside the question. Mr. Ahbott, — If the character o^ the raid is beside the question, why bas my leamed friend urged with such véhémence as an argu- ment for the extradition of thèse men, that their acts in the raid on St, Albans were atrocities prohibited by the laws of war ; un- precedentéd in modem warfare ; and so répugnant to the prin- ciples which regulate the conduct of* nations during war — ^^that the in uniciiaal law^ which ia «anally gjlent twfgy arma^ mnst ^ aïbnsed towreak iito vengeance upon iàeir perpetrators. Ifmy ^ ■*>*'^ tif*a. d, committed • 89Ô ■ " learned friend's argument was worth anythbg, my reply destroys it. If it waa worthless and " beside the question," he should not hâve used it. p- - Fridat, March 24th. fffiw. Mr. Abbott, résuming his argument before Mr. Justiojp Snmth, said : — In my address of yesterday I endeavored^withas much care and impartiality as I was capable of, to go over the evi- f dence bearing upon this case. It seemed to me that upon the évi- dence must chiefly dépend the eflFect of the principles of law, that hâve been cited as being applicable to it. Thèse citations hâve, been numerous and extensive ; and if they hâve appeared to çon- flict, it is chiefly because one party quote the gênerai nlles as estab- lishing his case, omitting the discussipn of the exceptions as being unnecessai^; while the other- insists that the exceptions alone apply and bas cited them only. To arrive at the real state of the law upon the facts proved, it therçfore appears to me to be neces- sary that the authorities on both sides should be taken together. Glie gênerai principles of law applicable to circumstances of the kind under considération, hâve been set forth by my learned friends on. this sidfe. The learned gentiemen opposite, however, hâve endeavored to make out that there were exceptions t» those gênerai principles, and that this was one of them. Now it is to : the examination of the question whether there are such exceptions, and if there be, whether the circumstances .of this case fall within them ; and again if they do, to what extent they affect the abstract rights of belUgerents, that I shall chiefly address myself to-day. X think I shall be able to show that in one sensé there are excep- tions to the Incontestable rules of law as to belligerent righte, as we bave laid them ,down ; but in another sensé, and in that sensé < m which those rules are to be applied 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 cusloms constitute law binding upon any belligerent, or enforceabfe by any tribunal. In pursuing the course which I bave thus laid down for myself, my views will be based principally, if not entirely, upon the authorities ah^ady placed before your Honor. When I lefl; off yesterday, I conceive that I had ftdly discussed the whole of the facts exhibited by the évidence ; and I submit that those fi^ts may be sudîmed up as establishing that the pri- Boner Young, then being an offidfer, of the Confedépate States, actaally commissioned for the pui^poee of haraasing the Fedend Stfttefl on their northem frontier, oi^gaufeed a party of twenty C^ federate soldiers within the enemy's Unes (namely in Chicago), in i ''M ■'4 ■Il ft ■ i' \ ; ri m 3,] } ■■<:'-m m '•lî IT' i 400 conformity with instructions ^ven to him by his Government ; and that with this party of men, luider the sanction of the officiai 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 ; a£d that on bemg driven out of it, he took refuge in Canada. Thèse, I think, are facts clearly established ,by the évidence. My leafûed friends opposite go further, and say it is proved that the raid was made from Canada. I contend it is plain Uiat the particular incursion actually carried out, origmated and waa planned and organized in Chicago, in the United States ; and that there is no proof tending in any way to' show that the attack ori^aled hère, or that it proceeded from hère. And I say that the only évidence ofièred on this latter head, is that which estabUshes 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 Ûie belligerent; and also that three of the persons who acompanied him on the raid were iraced in a part of Canada, shortlv before the attack on St. Albans. This is ail that is proved by the évidence adduced, and it does not prove the pretension of the prosecution on this point. I hâve laid the whole of it fuUy and fairly before your Honor, exaggerating or extenu- ating nothing ; and as my leamed friends hâve followed me closely, and hâve failed to point out any particular in which I hâve 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 faimess and impartiality. Nôw, I wish to call your Honor's attention to the arguments by which my leamed friends opposite endeavor to destroy the case we haye thus made out. I take Mr. Carter's objection first ; because it is an objection to the^^^efe of any commission which çould be issued by the Confédéral States, and therefore, takes a. wider range than mère objections to that, with which I contend Young was fortified. He says, in his proposition submitted to your Honor, that I* The Queen's Proclamation of May, 1861, is the exercise of a " national right, ' the eflFect of whirfi at most, is to regard botli " partiet as entitled to helligerent ri^hts or privilèges of commerce'; ' "but thèse rights must not be confounded wilh the right» and *^ privilège» re»ulting from récognition. Ëngland, he says, 'has "not reco(/nù!ed the Confederfite States, as an independent " sovereignty;' and he argues therefore that ail courts and judges " are bound to consider the *ancient state of things as remaininc = submit^gX»; p^Sns L £t^^! ^ l^ '"^t' ^' ^^' ^°^**«^ toîerceiveff Ce is^ différence between the récognition of a Stite as an inde^endl? Bovereignfrjr and the récognition of a State as a beCerent K th« réception of Lient. Young's commission as e^dencl Svi fK necesBity of the absolute'recognition of the SSrs Ltst an mdependent sovereignty, my learned friend's proSon wouW be correct. He is correct in stating that England Wnot recol Z«M '.W ^'^^S'" '^ '^' Confedemf States -and notha^S done so, Ihat your Honor camiot 80 recognize them. iJmitthTt^ look at ths commission a^ an acfmissike instrument of évidence? ' Is C'CÏl^ *" "'*''" ^ commission, or to recognize if^havin^ î^flj"'- TI"^^ conséquence from the fact that EnSmdhJ not recognized the seceded States as a sovereiffnfv • «Sf- he does, that she has recognized trem raTefcntrS' "l see what the authorities sa? about that. I shT^hL ot Z fo? Si fi' f ;Vr^'«^"\."^P°«"^« '^ *he fallacy hTco^Ld^ f Jfir^V"" ^^ifi^t.P'-opo^ition, tnat the effect of decla^IÏ earned fhend, what he considéra to be belligerent riffhtT T t^l it, that he must be of opinion that making X is one • t^ L camiot be made >mthout officers and3ere th^rilû ^ ^ ''^ Sl'^r \^n^ ?oldietantM^^^^^^ l^^^K States the nght of commissioning officers, we must reZSSeS commissions when tiiey appear before our Courts TodE«tW we admit tjeir right to iÇ>int an officer/^ then to dedS^ ^ évidence oTthat appointaient inadmissible wonldlL^r be r^^ Ct Wn^'^''^"^ mockeiy of which no 'nation co2VgJtj- What fand of recogmtion of belligerent rights would it bfto iiy tJtl ?°f«^*"*« States: you may makf war upon the'UniS 4'* »PPOÏnt office™, commisaioS ^Z^,T^^Ze^i «ttch a position n^ver could be assumed by any' StateTi^oTrl m M, 2 1 _i_Jj ■I î ri K,M!ia!ist^Ié8 ^wn mnb thë historv of _^ England yd the Pffaet it tJiatfed fwm'^ Sp^ltntThdr cclonîôs ; ^[WK^ âncTTîreScè j ^^léyiy fi^f aie exisiang staté of thihgs in AiJderica. (Mr. Abbott Hërè t«aâ front 'w3ÎL., H.*?* f' »V ^ /^ \ 403 me»ton, p 48, ,n notu, tho desoriptioa^veû of the position of Endand and France with regard to Âmerifa.) ^ ^r. tW.— Will you read the previous panurraph ? in^-anSrS?!:^!?'^ ("«^J' %mgTC'th; ruie that « lÏÏlî^ nf ' f •»•"•««"»* nghtp, 88 of â more fonwd acknow- ton in :^xa8 respecting a capture on belalf of an unrecoimized Mexican republio or state,) I admit that the recognihTeTCVf beUigerent ngbte, or of independent sovereigntj m™t be the wt of ^e povemment, not of t^e courte ; but, in tÛ. case, thrBriLh n- L 5^ *^g^ent la that the récognition of thoee States aa .Me SSt tf 1"«^* ^ fPJT* ^"^^ 0^ officers. In th^e lase i^erred to, the Government had not recognised the bemirer. ency of the State in question, and dia not, cSueX S |mse ite nght to capture ; but if the Gover^mentTd wo^S the vahditjr of a capture made on its behalf. • It is a faot also which iUustrates the e&ct of a recoenition of belhgerenoy, that England bas had çommunicafioà wir^^ns^ " r te"TH°« '^^ .^^^"^f * ^f'*^^ Confcd^SeKs Mr. <^«rfor.--I do not dispute, that récognition is an act o£ Gorernment My proposition is that vour H^or is restrict^ by ItJ^'^'t'^i^V^'' ^^^"^ ^J^« uponyouiBelf t^concede ^IZFt^A ""Y'h t^™"'^"* alone%arg4t. I refer to an au^tv I did not cite before ; pp. 119 and 120 « Halleck." r , ' '{•r""" ^*h »?™e <» the principle. It is the Govem sovereignty. But the question Mr. Abbott puts is this--— Since Il S:r«" 2Î ?«^T ^«^ ^«ognized the bSigrent XacteTof Sl!^S^ *™ P****' ', ^^o»». although the recognitirfallsX^^^f a bSSTÏÏ L'^ ''"^t^ independence, yet are not the Courte r'^^edTrr *"'" *^ *'^ ^•'"^ ^^"* «" «'^ ---«- »^ As a nawî S "*^ ^"'"^ Wheaton pag^ 42, and obsenred : nSno-^ï^ir **? u*"®'® '' * ^*«* diferende between rocog- nmng tiie belligerent charactet of those Stat^ anàtheir senarate rïï;i,±rT''/^'^i" *°°«'" thelatterisnot^gffiby tûé wvwwgn, the Court oan not recognise it. t ««mot do 00. *J*.-*i87poïftcttyoieii-tKa*ffié1^^ harmg reoogniaed tbem a» an indépendant nation/I \ 'i m il '.m * ■vUl Il " Il fe<'|iS%ï*,-i .5-., ^. '.t^AK^'VVÏ-' > îi. ■ ni ii 11 , y 404, Mr. (7ar<«r.— Then you clufflot recogniae the comçùflsion givoi» totheDrÏBoner Youngby fluoftftGoveAment. S-. JlWott,— That ifl a non Mqmlw. I. agrée ^nth Mp. Gar-^ ter's proportion that the. power of recognitaon resta Bolely with the Bovereijm power Df the State, and that the independenée of the Southero States not having been recogmzed, your Honor cannot treat them as indepenilent. But I utterly deny ihe correotoess of his conclusion. The Queen's proclamation of May, 1861, is express in its récognition of the beUigerency of the Confederate States, and in its injunctions for the observance of a /tnct neutra- litv in the strife between ihem and the Fédérais— and that, I con- tend, is sufficient to render the military conmusMons of the Coi^d- erates receivable in évidence hère. My learned fnend p- C^ter cites 2 Phillimore, p. 26, tothe effect that :- " It is a^m^crtoifooA- ti doetrine ofBrituh, and North American, and tndeed of ail jun»- «rurecMe2^ the /' same predieement eut Vwd^MUon», who engage in a contettj andj " being unable to corne to im agreement, hâve reeourse to arma." I hâve hère also the work of an author, who bas by no means acquired the positioti as a légal w^ter, which he will undoubtedly, at jome future day attam ; but w&ose writings on certûn branches bf international law hâve attained a wide spread réputation. I refbr to Mr. George Vemon Harcourt, who writes, under the name of " Historiens. He appears rather to lean towards the Fédéral side in his sympathies ; and his views of law, bave been in some respects vigorously combated, on the ground that they unduly incline in the direction of his feelings. I. am sure my leamed friends will aooept his opinions as deserving of the highest consid- ération, if not as being absolutely conclusive : and 1^-find that he attaches a very différent kind of importance to the récognition of belligerent rights, from that which my leamed fiiends would ^ve it At page 18, he says : " It is not true, however, in the meanwhile^ that foreign powers " are entirely without the means of redress against the persons owning " the allegiance of the new an^ inchoate govemment. The récognition ^' of tiie insurgents as belligerents gives them quite a sufficieùt person- *^ ality to enable foreign powers to address to uem remonstrance, and " to reçoive at their hands satisfaction. A semi-official correspond- '' enoe actually took place at the be^nning of the strifd in America ^' between the English Foreign Office and Président Davis, on the *' subjeot of the rules to be observed towards ne«itr«d nations^ in the " maritime war thaf was about to be waged. A govemment which ■** ia Hiifficîflntly inçorporated to enjoy the rights o£a belligareuti ^' not be suffered to évade the corrélative duties which are incum- *' bent upon it." il ^ •-H-t i > «1 r ; ' i I .«•i i-î.l^ Kr '^- ^- î^ 406 But though my friend, Mr. Carter, submitted this objection to Lieut. Young'g commission as something new, it really is not ^ew to tiie Courts. It is true that it is a new thing to hear his propo- sition of law used, in an attempt to ezclude the commission of a ^ belligerent from the considération of the Courts. But the effect of such a commission, and its admissibility in évidence hâve been re- peatedly pronounced upon. It is spoken of, for instance, in the Chësapeake case, to wiuoh référence has alreadj been repeatedly made. If there had been a commission produced in that case, the < prisoners would, no doubt, hâve been discharged ; for Judge Bitchie repeatedly and plainly speaks of such aspecies of autiiority as ample evidence-of belligerency . And if sufficient évidence, can it be stûd that it would not be légal évidence ? In the Roanoke case there was a commission produced by the prisoner, vhereupon the Âttomey General immediately declarod thQ case could go no further, and the {)ri8oners were discharged by the Judge. And Earl Russell, in his etter to Mr. Adams on that subject, gave the fact of the production of a Confederate commission as the sole reason — and a sufficient reason—for sustaining the discharge. It is true that Earl Bussell's opinion is hot'ajudicial one ; but it is of great weight on thispoiij^t, for my leamed^mend's objection rests chieây upon a reason wluch is as much one of foreigor policy as of law ; and Earl Bussell is the statesman who at the date ôf that letter was at the head of the department of Foreign Affidrs ; and he wrote it as the opinion of his Government iil that behalf. In the case of the Nashville, in 1861, Elarl Russell wrote in peremptoiy tenus to Mi:. Adams, denying that tiie act of the officers and crew of the Nashville could be treated as pirates for buming an American vessel at sea ; and quoting in his déniai Mr. Adam's assertion that their act '* approzima- ted within the définition of piracy." And the expressed reason of that decifflon was that " the Nashville was a Confederate vessel of war ;" and " that her commander and officers had commissions in the Confederate service." Even m the Philoer êef My leamed friends wÙl probab ly say ITm. lïén I say the O^rdcOTTiottiniiondon, aH(l"tBé Macrèad^ i^\B in New York were acts of war per $*. And perhaps they :| ■y^ ' 1 * !tll » • ii 1 •>k -< lii ïV«.S.tl; i^.n iif "!f: X te iX. . 408 will also assert that the shooting of a solitary maa in the dark bj another solitary man, is not an act of war j?cr %e. 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 àhoots an individual approach- ing his post must be regarded as ar murderer. Where in the books do theyfind this (^tinotion bet^eén an act of war ocr m and a construc- 'tive act of war ? What jprîst treats of it ? I thmk an]|png the piles of volumes that hâve been displayed before your Honor, my leamed fnends might havç^found some stray sentence that would hâve sus- tained them. ^JBut we hâve heard nothing of the kind. In fact, I am under thé^ impression that my leamed fiiends are the first and only jurisconsults who hâve ever drawn that distinction, Mr. Johnstbn attempts to dispose of the question by arguing as he a|sfays does, in choice and plausible language, which gives a force to .y^vû& argument that it doe8 not intrfnsic^ly possess — that no man eau X ^mean to say that the easing of poor old Mr. Breck of two or three / hundred dollars is an act of war per ze. " What," he asks, " is " the natural conséquence of robbing Mr. Breck ? Is it that the " national power of the United -States is prostrated, or in the " remotest manner affected by it ? The natural conséquence is " that Mr. Breck loses his money ; but it requires a great deal of " imagination to conceive, and a good deal of ingenuity to explam, " how that fact tended to exhaust the national resources, or attack " in any manner the national existence." He goes on in the same strain through half a column of the paper in which his speech appears, and by holding up the partic\ilar act of pillaging Breck as being a petty and inconsiderable act, incapable of affecting the resuit of the war, he endeavors to show that it could not be what he calls war jper ««. And my leamed friend, in support of this kind of argument, makes this cnaracteristic statement. He says : " As " far as extemal appearances are concemed, to conclude only from " what was described to us by the eye witnesses of this proceed- " ing ; that it waa a warlike opération may, I think, be falrly said " tol)e imp(»sible'. If common sensé were not quite a sufficient " guide, by-itself, to conduct us to this conclusion, the authorities " already cited by my leamed friend Mr. Bethune are upon this " point conclusive. Vattel, Martin^ Manning, Poison, Woolsey, Kent, Wheaton, and Halleck, concurring, as Âey hâve been shown to do, upon such a point as this, may safely be deemed of sufficient authority tb guide us to the décision of what is, and " what is not considered upon gênerai principlea to be an act of " war." Well, now, ar it happens, no one of those authora bas ^d, tfiat the p illa ^ and sack of a towp is not an act ôf war. No oné of them haa drawn~^é distinction between an act of war jwr M and a constructive act of war. Not one of the citations quoted (( « . ^«/. ù^^è^'idÉi^^ : %- 1 . 4 11 .409 by Mr. Bethune, on whose labor and leaming Mr. Johnston pro- fesses to rely, directly or indirectly lays down any distinction between an act of war per 8e and a CQnstructive act of war ; nôr do any of them treat at ail upon « such ar point," as my learned fnend is urgmg, when he poure out their names so fluently. War does not consist merely nor eyen mainly of battles between great anmes, although the modem tendency is to confine it to them as much as possible. On the contrary, it is composed of innumerable minor acte of hostility, in which, unhappily, injuries to individuals and to privateproperly are ôf momentary occurrence. My learned friend's remarks, as applied to Breck, might, therefore, with equal propnety and equal justice, be used with respect to incidente in this and m every other war, which occur hourly— which are occur- ing while I speak. When a cottage in the Shenandoah valley was bumed, was « the national power " of the Confederates « pros- trated " by so doing ? When one of the, piUagers of Darien camed off a table on his head and a pair of chickens in his hand, , did those acte " exhaust the national resources, or attack in any ^manner the national existence?" Such pueriUties as thèse appear Smart, but they are not argument, and do not even resemble argu- ment. They are the more^ excusable in my learned friend, how- ever, as they constitute qm'te as large an élément in the Burley judgment as they do in his address ; witii this différence that he bas greatly the advantage in the mode in which he has placed them before your Honor. What the authors, whoge names Mr. Johnson runs over so glibly, do contain, however, is a clear and conclusive statement of what the nghte of nations ai war with each other really are. And they certainly do lay down, as an exception to the gênerai rule already sufficiently established bv our authorities, that ail subjecte of each belhgerent are made enemies by war, and may kill each other and despoil each other of their property; that the war flhall not be waged with "any more violence or cruelty than is Mcessary to the end which the nations at war mtend to gain. That iB'the rule which nations in modem warfare geneMJly volun- tarily observe. But this exceptional raie is not only iteelf subject toa great many exceptions, but it is one not enforcible in any wav, except bv reprisais or retaliation. Moreover, the ténor of every citation made from the other side, as to the mode in which war ought to he conducted, is, that both par- ties are entitled to carry on war, in such manner as they may think urODer, without responsibility to any one; and especially it is or décide whether one mode or another is proper or improper; or «an punish in any manner or #ay, any breach of what they may I" ■^ i. iV \ i deal with the authors of it. But that on the contrary, when it is admitted to be an a|Ct of war, 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 ail. Judge iSmith. — We are to détermine, m the flrst instance, whether the act complained of is an act of war or not. If it be, what tribu- nal can try its propriety ? Mr. Carter. — I say that this offence is not'only a breachof civil and municipal law, but a breach of international law. It involves both. In tne first place vou can not regard it as an act of war^ as the prisoners previously lived hère, on neutral territory. Judge/Smith. — You must not confound propositions. . If the act is done *rith authority — in obédience to orders given on behalf of a. State (recognized by our Government, so far as carrying on the war is cèucemed, and yet is alleaed to be in violation of the rules of w^r ; who is to try that question ? To say that il; is to be tried in any neutral oountry is absurd. Mr- C(wt«r. — What I contend for is, that there is no'authority proved. Judgè Smith.— -Theit is again another point. That is the point I want to bring you to. Mr- Cat^.—Î say that if the Confederate States were an in- dçpendeût nation, they could not ^ve authority to those parties to ao^ aa they did at St. Albans. • Judge Smith. — The real diffiçt^ty pftbe case is this, has tiiere -^en, Âown Jg-haae. been any compétent Ihëiw men acted f~ Mr. JDevliti, — Was there a oommi^sion ? or has the aot been avowed î ,, / / 411 Judge Sm%th.—ïîyZA thèse men allège, they acted in obédience U^ çrders issued by compétent authority, and only did what, in the pxecution of their duty as soldiere, they were bound by their alle- ©ance^tp do, then the simple question is, hâve they proved such ^®"!i f *^®y ^''^ "°^' *^®" ^ °*^®^ considérations fall to the giround, and they stand hère as ordinary criminals. » / 4fr. Bethum conunenced to explain what he meant by an act of ifaxper $e. Judge Smith. — ^Neutrals cannot investigate the character of an act of war. When nations are at war ttiey act as they please , tocards each other ; and a neutral has no power to say this is an act of war, or is no àct pf war. The assumption of the contrary dpctme Yi^ould lead us into a labyrinth of difficulties. Mr. Abbott.— THÙB discussion has brought the question raised rçspecting acts of war, to an intelligible pomt ; and the view of it jn^ stated by your Honor is the one I hâve been ail along con- teftding for. With regard to the impression çonveyed to me-by what ypur Honor has just said, as to proof of express authority being requisite to enable you to regard theprîsoners' acts as hostile acts, I beg respectfully to subnut tiiat I thinjc the authorities would n^taiu a wider view of the functions of a commissioned officer. It wpotof much importance to my case which should be adopted; m l consider the express authorit;^ fully proved. But I (to not lyiph your Ho^or to thmk that I admit that an officer, with soldiers u^r bis command, may not sack and bum an enemy's town at tojr pomt and at any tlme while war continues, I contend that if he h^ never had any instructions from Mr. Clay, the production ^ of Mr. Yoùng's commission as an oflScer, and the pïoof that he t^^ aparty ol twenty soldiers acting undey his orders; the act cJl^tfged being that of attackîng, and, as far as they were able, suc^g and buming a towp in Vermont ; would bave been sufficient t9 defeat this demand. I sày that the &ct of himself being an ^ 9i^er, and his command being soldiers of one of the belligerents, ■^ a^jing on their behalf, against the other belligerent, and in their topcitory, is sufficient, without any instructions, whatever from his .Qoyenment, e^tirely to deprive the municipal law of Vermont of al( power over him, and entirely to divest t£e a«t he did of the ohftT^ter my leaif^ic4 friendâ on the other sidewish tp attach to it. Jl ,cpuld never be cpntended under such circumstances that the . fifi^ they cc^mitted werë vere viclfttions of âo mumcipal law of - m Sta,te pf Yermpp*. BtutI dp npt intend tp argue this ppint %^fir, (M I bpi qwte w^ed pur ppsitipn, as reg^urds it, is faHj Tpreiipra, QieiQ,.J|) the anthpiitiea of my leamed fiie^ds, and t)ie mipdplea they attempt tp 4r<^wfirpi]|i tiiem, I wiah pnce fcir fJl to ; (1 ï Y 412 say, that I contend that the stâiement by the learned authors pited, that certain l^ostile acts are unlawful, oonveys nothing more than that tiiey are not in accordance with the course of action whioh civilized nations tteually follow in war. As I bave repeatedly re- marked, none of those authorities class acts, such as the présent, among whal are termed unlawftd acts ; but if they did, the fact of their being unlawi^l, in the senqe in which they use th^ word, would not bring them witbjn the jurisdiction of the ordinary. municipal' tribnnals*. And another lin| of argument and authority they hare followed, is quitQ aa easily answered. Citing from numerqus books in support of their view, they insist that it is unlaiwfîil for persons, thdugh belon^g to a belligerent nation,to commit déprédations witUa their enemy's lineS in disguise ; and that such maraudera are liable to be treated with extrême se^erity. Ail this is true enough. Even belligerents, if they are acting within the enemy's Unes in disguise, are liable to be shot or ,^wged ; that is, they are amenable to the laws of war, and are liable^ to be tried by court martial as guérillas, spies, and^ the like^ and executed just as Beall was. Or, if the offended belligerent chooses, he aay, shoot w hang them without trial. But none of those authorities show that ^ guérilla or spy is to be tried as an offender agunst the ordinatr municipal law^ or that he is amenable to it in any way." Beall s case is an instance 'bî the constiniction put upon thèse authorities by the United Staiies themselves. He was charged with several acts, whfch) under ordinary circumstances, wôuld hâve sustsdned indictments before the regalar courts, but there was no pretence of his being Justiciable by those courts. He was tried by a mili- tary court for thèse véry acts, as violations of the laws of war, and ie was found guilty accordingly. And when my leamed friends cite the Burley case, they should remember that the chief offence charged against Captairr Beall, as a violation of the laws of war, for which he was tried by a tribunal organized under the laws of war, was the very act which Upper Canada Judges held to hâve had notlung to do with war. Either Beall was illegally condemned and «xecnted, therefore, or Burley was illegally extradited. I shall «entent myself at présent with saying on this point that I am pre- pared to admit that the présence of Toung in the enemy's country, with a party of soldiers in civilians' dress, would bave jendered hun and his party liable by the laws of war, if captured,.t4A>e treated as spies or guérillas, and hanged or shot on me spot ; and I siibmit iihat 1^ vérification of the auuiorities cited on this point yn!H show tiiat they carry my leamed friends ho fiurther. But that they in no instance estîtblish that persons sa liable to puniBhïnent,are amenable "io Âe Courîa, and consequenily coûIdDé extradited, ùndèr the , Ashburton treaty. ^1 should exceptf howevvr, the letter of Dr. (.•>Aï fi 413 Si ideher to Judge AdYOcate Bolles, written on the 5th of Februarj Uutt for the Beall case and. for this one, and actually read to the Court by the Judgâ( Advoéate, as auùiority in the Beall case (p. 85) ; and now read by my leamed friends as an authority hère. It is a new feature in the argument of a case to hear a letter from the Plaintiff's Counsel, giviog his opinion on a case before a Court, read to that Court as an authoritative exposition of the law of that case. And it js more extraordinary still to hear a letter ^m an obscure person in the United States, upon a ques- tion ol^ public an^ international law arising between that Çrovem- ment and tLe Government of Great Britain, quoted as solving that question ; notwithstanding that the writer, in endeavoring to .«stab- lish his position, diaracterizes the doctrine approved of in antffî- cial déclaration of Ëarl Hussell as the organ of the British Govern- ment, as shewing such ".inisolence, absurdity, aïid reckless disregard of honor" as to "fairlj stagger" a jurist or' a student of his- tory.'''' My leamed friend, Mr. Johnson, found à, Pickwickian in- terprétation for the term ^'insolence," but he wisely abstained from seeking to translate "absurdity and reckless disregard of honor." His position, vhile he argued that "insolent" meant " unusual," was sufficientiy pitiable, yrithout being piolpnged during the performance of a sinular opération upon Mr. lieber's other polite expressions. I shall take the liberty, therefore, ofpaying no further attention to this, the soUtary favorable authority Which my learned friends havei)een able to find, or their clients to manu- faotuire, for the purposes of this case. o What yotir Uonor has said on the proposition of my leamed friends as to acts of vrar, relieves me to some extent from the task I had imposed upon myself, of following seriatim the authorities oited on that 'subject by the other side. But I vrill glance at two or three of them.'^ Mr. Devlin cited, chiefly, from Vattel ; aùd Mr. Bethune, also, made a very extensive use of his work. I think therefore that I shall merely refer your Honor to the citations fur- nished in support ^f our 7th, 8th, 9th, and lOth propositions ; and then content myaelf with taking tiie quotations made by my leamed friends from Vattel, and sho^ring how far my idea, with reprd to ihem, is borne out. My leamed ^end comofienced by a citation from Vattel at page 8ôl, and Mr. Bethune by another from page 847. Thèse are the very first quota,tions they made, and it is remarkable how they completely deprive my leamed friends' argu- ments of ail force in law, leaving to it, h^wever, its full value as an exposition of what war ought to be. At {Age 847, afrer laying c Ml b^gerent haa a ^ght to employall the means which are neoessary for its attainmenti Mr. Vattel oontiuues : 414 '0, "The lawfhlness of the end does not ^ve us a reai rîght to any- " tWng furtjier than barely the means necessary for attaimnent; of " this end. Whatever we do beyond that, is reprobated by the *' \m of natare, is faulty and condenmable at the tribunal of cm- " tûîenee." And in the very liext paragraph, assuntmg as an axiom that " it belongg to each nation to judge of what hor own particular " situation authorises her to do," he proceeds to sho^ ^at a sorerei^ who onnecessarily adopta extrême measores and carnes on the war with unnecesàaty sererity, " is not innocent before OÔd and his own conscience." Thèse few Unes embody the prindple, the dttelôpment'ofjrhich is the sabject of the 8th chapter of Mr. Vattel's tlurd book.'' It is the " tribunal of conscience '* to wlâch a (îoyemment is amenable, when it carnes on a war in a maniier inconsistent with the humane rùles which are usoally observed in- modem times. It is before " God and his bwn conscience " tiiat he will be held culpable, not before any human Court or Judge. But there are numèrous ciroumstances mehtibnèd by Mr. Vattel in the veiy pages my ïeamed friends hâve cited, where ail the humane raies they approve of so highly, may be violated, without incurring even the teprobation of the conscience, — such are those things which are donc by way of retaliation and reprisai. — ^And thèse were the pro- fessed objectB of ïbe 6t. Albans raid, and constitute the most ob- vions of thoBç which can be supposed to hâve act^îated the Confeder- ate Govemihént in devising it. Then, if Mr. Vattel's doctrine cited by my Ïeamed friends be correct, it is only the Confederate Gov- emment to whom " it belongs to judge what her own particular " situation reqxrires her to do ;" and if she judges wmong and per- pétrâtes acts which are not justified by the ciroumstances, U is only " to God and to their own consciences " that her rulers are réHbonsible. The remwnder of the same chApter has been cited at différent points, where varions kinds of injunes to an ènemy are declai«d to be unlawful. I hâve already shown the eflbct of thtt kind oî un- lawfùliieBs, but it may be useftd to puriue the argument a little forther. Mr. Bévliû Srea^ to us from )[>ége 861, that women, childwta, and feeble bld iaen do not comè under t^e denoinination of enéyies. And ihat solcUérs àhould not hartti thbsé clàases^ taor peftàatotJs and btbéirs, S^ho do not carry «rtns. But hè «avs in èèc- -tiool46: •' ^ » But aOl 'flioiB èHéMilà thuè èùMùéd or (fisà^éd, whbià tiie priAç^^ of httiÉawity oblige him tot^^j— ^aÛ tfcôse tërtWÉ*e- lomàuzio a» otoDontè pài^ f eve&^e trottieû *nd élmStn énd iààlro ùriÉAier*, * * • • 'at «Wséttt, 1 « ♦ * *, women and childién We étiTetéd fo ét^j^ma^ ^bMA^, t .li. '5^,1.1 ffi Ui 415 L ** and allô wed ^permission to withdraw wherevfer they pleaae. But *' this motierçUion^tJiùpolitenesSfthoughuncloudbte^t/ commendable, " 18 flot in xtu^ gbêolutely obligcitory ; and if a genfh:^l thinks fit to " supersede it^ he çannot be justly accused of violating the laws of " war. He ifl at liberty to adopt such measures, in tbis respect, as «< he thinks qsost conducive to tne success pf bis affiiirè." So that, if the enumeration of non belligerents, aa persons wbom it is unlWful in ^^ to injure, had any bearing on this caise, ^hich it bas not; the context, in the very page from which the rule is drawn, but trbich my leaméd friend omitted to read, points out tb&t tMs u&laivfiilness is not absolùte ; it is subject to no «Tudge bere on oarth, and is punishable by no tribunal. But let us look a little closer at this" argument of my leamed friends, and apply' it to this case. Admiting for a moment that the St. Albans attack falls within the description of unlawful acts of war, would that fact bring the yisoners within the treaty? The killing of J^jsoners who bave surren- dered we are told is tmlawful.i^ But vhat is the conséquence of putting . a prisoner to deàth after his surrendef ? Is the peraon who kills bim guilt? of murder ? Can he be denmnded and èxi^adited, if he is K>una in a friendly country with wbom his enëmy h&â such treaty as ours ? Take thé case of Gen. Morgaii, the ^dlant Confederate cavalry leader, who was shot dead in a garden by a partv of Fédéral soldiers while unarmed, and after he had surrendered himself ; was stripped of his clothing and his corpse flun^ into the nearest ditch. According to Yattel, ànd to the hundreds of other writers to wbom my leamed "friends hâve referred ob this very point, thèse were unlàw^ acts justifiable on no grotlnds wh&tever; and Heavenforbid that I should dispute such a Ipropbsition. Butwould tbe murderoiis rufSan'wbo killed ^lim be liàble to be tried by any municipal tribunal for that crime ? Would t^e sordid outcasts whb tore the gahnents from the yet palpi- tating corpse, be held guilty before ttie Courts, of an ordinary tneft ? To hold that they womd lie, wotild be in one sénse as shôcking to .the o^i^ons of the civilized world, as to àpprove of the infâmoùs ûtltrAges which I quote in illustration of my argument. * > Mr. Deviin tt^ain cites nftgès 857 éxÀ 859 of Yattel ; but foi; wha^ pùrtKJSô ? ,Tô prore that an eneiny may nôt làwfuÙ^ be treàcheif- otlsr^ [fljsâ^iiii^ied or ^iSoAed ! We dôn't irequire b<)ok0 ,^ bô . tpt^A. to tis to pjihôvia 4ùch propositions. 'm'S'j, éanqit i Be tiie^ &fé q[tdte as irrélevant as they are; ti^^e. it within Ôùr <>wn titne j^ves ûs instanôes ,of » liras. M^<^^ , i^ ]E^^^d ; inA wé kiiow how Qiê, ^ro- tk>fiU yto re«elt«d. âiâûrdly ^e âaight hâve béen sjpdrâd (fiése âispëWd ; biit t) tii -El ■"■:] » . Il fi t 1 IN iî i ,^1 U^>% -.>* 416 quotations, as well as that which follows them at pa^e 362. A moral exhortation is very good in its place ; but it is not by the views of philanthropists as to what the world ought to be, that we are to be govemed m administering the law. Mr. Devlin read us haJf of page 862, but if he had also read the first two Unes of it, I think he would hâve found it unnecessarj to proceed. Mr. Vattel préfaces the portion Mr. Devlin read, by saying, " I cannot con\ " clude this subject of yih&t we hâve a right to do against the peraon " of the enemy, without speaking a few words conceming the dis- " positions we ought to préserve towards him." This really covers the whole ground. Our authorities will show your Honor what belligerents hâve a right to do. My leamed fnends attempt to limit that right to what Mr. Vattel thinks they ought to do. I, imarine there can be little doubt which rule your Honor must follow. ; , •' ^ In the next chapter of Mr. Vattel*s great work, which treats of the rights of war with regard to /things belonging to the enemy, from which Mr. Betihiune has largely cited, the same distinction is to be found pervading the whole discussion. The right to seize upon and appropriate to ourselves the jproperty of our enemy is stated in dbect terms (pp. 364, 366.) But the duty of e^iiercising this right with modération and humani^ is Btrongly urgéickupon belligerents ; and upon thèse statements of duty my leamed friends build up the fallacious proposision, that becàiise they thihk the pil- lage of St. Albans does not square with Mr. Vattel's view of pro- priety, therefore it is unlawful ; an.d, therefore, also, the prisoners are taken out of the immunity which the laws of jrar afford them : and must be extradited. But in reality, the pillage of an enemy is nowhere declared to be uiJawful ; but, on the contrary, is referred to in every page of chapter 9 as an undoubted right. Aulfer. Vattel mentions, also, in what way pillage may be fully justified — nj^ely, as retaliation &nd reprisais ; and he states it to be entirely in the discrétion of the authorities of eftch belligerent to décide as- to the nature and extent of such retaliatory measures. I proposed to place beforejrour Qonor évidence, provmg that the modem which this war has been carried on by the Federtus was such asto afford the fullest justification of the retaliatorV raid now nnder considér- ation, but your Honor rules it out, and I tnink rightly. For I hold that ^ the act be done with the authority, express or nnpiied, of the Confederate States, its propiiety is a question beyoâd your juris- /d^otion. But ample évidence of it is neverthelesj not wanting in those records of daily eVents which constitute tilie history of this* The extraot I rèad yesterday from the " Rébellion Record," war. ^i^wt4iiôiMhe4E^ted States wi^ge^ war. Bat tiwrriuw been thing more \hen this. Tbe Fédéral Le^slature bas passed an aot, M .1^1 ik vi«tÉrta-a ^ < ir,/'^V»'- ^1 - -î,— j ■Alé^:-itfy.ii.j, 417 '" ' , ■ Vjrhich the entire property of the subjects of the Cfonfederate States bas been confiscated. I shall read from the speech of Mr - €nttenden a few sentencss vhich admirably characteSe this most ^«xtraordinary pièce of législation: » luwt . " You propose the confiscation of ail the propertj of rebels, their Z ^^f'I T^ ""Y^^' .^** ^ *« number of ^ople who woiud b^ ^ mcluded m the proscnption? whom would that include ? AU who ' « T®ir^? taxes ail who bave made contributions to support the rebeUion^? aU^who bave taken up arma, or aU who have^ven 1 Tl n'*,r'"î^^*<' those who hâve taken.up ânns ii^ support of . - tfxe rébellion ? How manj would that leave î'^The exception wUr be but very few, -rfyou consider who are theprincipalsf and X the aidera and a^ttorS of this rébellion, ifere aîeten States! . Îî-M ^ C ^?^,^.«î°fi««ata«« you proscribe man, woman, and hke it. Such a proscription was never before issued by an?.. human authonty. No plague, no pestilence, which ever de- " wodd » "^'' " ®''®'' "^"^^^ "'''^ "^**^®^ *» *^ ^.S" *^l* '° ^"'' Î^^Jore. (^mdenying the right of one beffigeront toseize the propertv of another, the t 'nited States.as Mr. Crittenden shows, bave actuarfy con&cat«d the whole of the private ptZrty orevery man woman, and child in the Confederate States" Se& jrUl was wortiuly executed by Montgomery in bis incursion into Dj^en; and the dévastation, the pillage, the destruction wS bave made a désert of the Shenandoah viy, would nrbeover baianced by thousands of such raids as that ijon St. Albaw. îf thi^refore, it were necessarjr to show that the Stock on St. Alban^ wap a fau- measure of retohation on the part of the ConfedeS Government, we could do so without difficuKy. But I a«Sn rS snjctfully submit that this question is not befSe yo^ HoST Tf thé Confederate Stetes had a right tp give ordeiî for such li ex pedition at aU, it is not for us, non for your Honor, to sav whether or-no this was a projer occasipn on which to exercie thî^rT2 I Pni7?^lo ^'i *° ^Ti- ^î '^^'^^^ °f *^ Fini rSiink I could follow mv leamed friends through the boots thiv bave Sfl' f ?°''- *^** ™.rR^Î*"«« «»« ^^oûon I bave hZ ''^''^l^^^^.f'^^^^}7 the. authoiB they cite. Howem sti^ngly t&ose wnters may advocate the canyiii on pf waJ 'm î humanemaàuçr,or mavoontend that it ought'toie w»«ed b S2 way or m ttiat, they alT agrée tiat it is for the beUigeS^^tiÏÏ xe^gnise M laijrful, the only remedy i/reprisal and retaliatir Unless, mdeed, the persois actually en|age(f in what is deemïdim BB , 'il ■^ * ' , it» a-'^^^i^isiiiii '.fc*^,4te,j»iii>;dJÀ.j^"'«SA^à.";i K^'4-3î;-àv.iiSï5r ^^^^ïisRœ^^'jJ^^'olS^AlhA^' Jw-vW'XÎ 418 if!. ' f , unlawful expédition are actually captured bj iheir enemy, in ^hich cdsèythej will be liable to be treated in an^ ntanner uiat eiiemy mà^ think {^roper, and the injury they may hâve donè can be arettged bj retaliatory acte, in the discrétion of the injored party. It ig only m thèse modes that tl^e Taws of war can be enforced, or their violation pmûshed. Thas, Sf the prisoners had beeti captured in the United $tate8 it would hâve been for that Oovemment to say how thoy should be dealt with- They probably might hâve been treated aâ gneriHas, perhaps as spies ; tried oy dlrum-head Court-martial, or i^ot or hanged on the spot, withont any form of triais y leaving this subject, I vish to refer to the point saggested by M^. Johnstonj as to the distinction between lawful and imeiwful vrar/ Mv^ Johnston, in his argument, insiste that tliis act was not laVrnl war ; he cites from Jude Talmadge and Judge Cowen to ^ustûn his pretension; and ne refers to Vattol on the same I find it difficult to seize his exact meaning in this — aiid 1 he bas misapprehended the juriste he quêtes. Their discus- Vas upon vrhat constituted a law(ul stato of war ; not as to what \aB a Jawful aet of hostility between belligerente. And he appIiesXthe instances Judge Talmadge gives of incurmons which do not oonstitute a lawful state of war, to tiie nresont case, to prove that it^i<^ not a lawful act of hostility. Judge Tahnadge does not lé question whether or no an unauthomed incursion b^ a ^all pakty of men of one natiop intè the torritory of a neighbonng nation is-in iteelf lawful war, there being no war between the two natiolàs ; beoause it is beyond discussion ; it is n(A lawful war. But he examines\what constitutes a state of lawful war, Or perfect war, and holds, as Mr. Johnston properiy stateS, that acte of a cer- ti^ charaotor are required to constituto lawfiil war. But the way in whieh my learned fiiend reads and applies thèse authorities can only be Bp^ciatod by quoting fVom his ëpeeoh. He says ; " on <' the (Question whéiber the circumstances proved in this cfase clothè '* the transaction with the character of lawnil war, it i»to be observed '' that Judge Cowen and Judge Talmadge, his critic, both agrée. « < To warrant the destruction of properlhr, or the taking of Ufe,' sa^s <' Judge Cowen, * on the ground of pnbfic war, it must be what is <' called lawful war by the law of natums.' * Ail will agrée,' says <' Judge Taimadgè m his. review, * that the war which affords impn- « nity to tliose eùgi^d in it, must be a lawfiil war.' Ya^l 13, 8, « 0. 4^ sec^ 67, say»: * A war lawful and 'm tbruis cu^eftdly to be « distmgcDilkéd frota m unlawful war entored On wiâiottt any form, « (^^MMarjfonl'tiWétf metartioA» which'ai«:co«iunStt6d^ÂeriHthèfat " 1é»M >uan>iilj , 01 appa re nt < uwge, à B lil te »i w r, m time of war, is of iteelf an uSawfiÛ wS w^"£' . • ?*^^ ïn«PpUcable hère, because a stato of lawS wvoprand ui mopiiMtent with eveiy principle tO bTSÎS hi - u J -'^ffJ i ^^ù«ij. j.'Ut^V' ^ ^l^fi ^v^lWi'. f.»ï^<^ £pose that those twenty men organized at St. Johns, armed them- seîves there, thence orossed to the United Sfotes and made their attack on St. Albans, Mr. Young being, at the time, at their head, — takmg this hypothetical state of things, aie prisonen undoubtedly did ifhat was Ûe^ quoad us ; they were gaûtj of a gross outrage npon us ; and their Govemment, if they aumoriied it, committed bjx offence i^unst Oreat J^tain, and gave her tiie rigbt of dMoanding apology and redress, and also of punidiing thé offenders if foond within her bordera. So &r as I hâve now stated the law applicable to this supposed state of things, my learoed firiends' aumorities exaotly confina my views. But my leamed friends insist that there are further conséquences attached to iMs act of disob^enoe to our laws, and thaithey, as représentant the crown and the United States, hâve a light to make that disobedience an argument for extradition. Now lassert and ahallmresentlyprovetthat the United States Oovem- ment hâve nothing to do with that breach of our Irwb — nnttwnf» wbikt- eyér to sav m the matter ; and that it does not riràt within her rights to say before a court of law, that Great Britam pnust enforce the :^léi,,-mâ':':-:;'^^v,M 423 hère, in the< m doing. And I other matter, b law vhÎQÎi prohibita 'such proceedmgs. If she bas anv such right àt àll, it is merely a right of remonstradng with tide Government of Great Britain, But she bas no rigbt before our courts to prpsecute' such an offence, still less to urge it as a reason for l^ding our criminals over to her for punishment. The ques- tion is a very sùnple one for us. The pnsoners hâve violated our law; and they are charged with anotler offence to wbich their belligérant cbaracter is a good defencd Are we to refuse them the benefit of that defence because tney hâve offended, ua in , ftnother respect ? I ingist that we should adopt th& pçoper con- stitutional reînedy^ nèlfish them for the crime they committed Vrized by our laws and as they justify us in ^|>tny be a long day, either. in this orany "we rerase to exercise our proppr constitutional aut^ority ; or become so degraded as to deliver over men în the po8iti(}^ pf the prisoners, to their natural enemies, for a mock trial, as a mode of vindicating our honor and digrûty. Such a qourse might avenge us, but it would be grossly uniust and dishonprable, Çontraiy therefore to the pretensions of my îeamed friends, I subnjit as a proposition which it is utterly impossible to get over, that a breach of our law bas no bearing whatever upon, or relation ^ to, the act done at St. Albans. It is that act and that act alone, which the United States bave a right to complain of. They çan only demand the extradition of thèse men, because, on a oertûn oay they assailed, pillaged, and attempted to hum, a town of theirs, twepty miles from our border. Their demand for extradition must rest on thiq alone, and not upon apything that took place in, onr çountry, either before or after the raid. In short, it is not becjawLse thpse men comn^tted misprision of treason agtûnst Great Britain, that they are liableto be delivered over to the United States for an act committedin iheir territory. , 15»e prétendons ofnyr leàmed friends in this behalf do so ahpck . «U my preconçeiyed ideas of law ^d of justice, Àat I thbk; I ip^aty piroperly callfor ai» authqrity, if there be one, which déclares, tl(at oecftuse an act of hostility committed by one belligerent witb^»,'t^^e territorj^ of wiothei*, is complicatéd with. the breaçh of the neutjnjity ,<>f, a tlufd nation, 1jhe*beUigerents o&ndmg asainst tiie ne^tfld nation, are thereby deprivea of tbéù: rights as bellige^nts gmad 4)eir onemy. We bave had a good many citations, it is^Çie, tut tiiey rtop^ hr short of this pretension. Those Mr. Beil^e siibmiittéd on thw- point, had référence to captures in maritime war- fare, inacle either m neutral watera or direofly from si^oh wa'ij^ni, — J fc e Q i ^tur e^ts it ww rw taking ita inception in, n^ufa i a^^wa tor- '~ ^ he citêp, thiem to show thaj) such captures are unlawfol. -agfûn, strange to say, we agrée about the abstract law. I m ■'et 3 '■f S i 8i j^ 1 — n* t -»M %l^ Vf 424 that such captures are uiJtfwful in one sensé ; that is, they are void- ah\% but not absolutely void. But do bis autbbrities show that the persons making such captures, weire evôr held amenable as pirates for the capturés so made ? If thèse authorities sustain him at ail, they must go that length. If they do not, they are wortiiless to hhn. If the violation of neutralily committed by such a capter, takes away from him bis belligerent character, and reducès him to a mère pirate, subjept as such to the municipaj law of the country from which he madç thé capture, then thô authoiity is ii> point ; and the " prisoners, in like manner, "will be converted by thé effèct of a breach of our neutrality, into inerè rol^bers, liable to be extradîted and tried p Vennont. But the mère statement of such a monstrous notion of lavr should' suflSce to réfute it. In reality, îs there ' a case, a dictum, or an opinion " stated in any w.ork that bas been referred to, tending to show that,'because such a capture was illé- gal and would not vest any title in the captor, that captor was a mère pirate ? Or that he oolild be made amenable in any way to the court» of the pô^r whose property he had been taking as his prize, or. be delivereff up to such power for any stich trial ? Is there anything which establishes that position? My leamed ïriend Mr. Johnson laughs ; but I ask him to cite some book in favor of such a view. Mr. Johnson.— li does not follow that I am laughing at you. True, thert is no case in which a partvvhas been so demanded, be- cause it waS an aot of maritime war ; but In case of robbery or for- gery, would the partv n^t be gîven up ? Mr. ^Wo«.--My jeatiied ffiend's laughing is of no conséquence, of course, further than as I understand it to express dissent ; and if he does dissent from what I am now saying, I âsk him again^to cite lan authority, or boôk, or opinion, justifying such dissent; and I suppose my leamed frîend will hâve no difficulty in doing so, if there be any such. However, he does not ; but admits that there ir no case in which a belligerent making a capture, declared illégal because made in neutral waten, was ever demanded M the other belligerent. But he says this is maritime warfkre m which the rules are différent. Well, this is one of the particnhirs in which my leamed friends differ a little in their views of tiie hw. Mf. Devlin cited ftbtiiorities croving that tiiere was no différence between warfiffe at sea and on land. .\ ' ■ Mr. Devlin.^The very opposite ; there is a différence between .them. Mr. A6bott.—lt is possible it may hâve been Mr. Bethune who cited it ; certainly, one of them did. Mr. l> e v Un . r- J) e m ti à it Mr. Abbott.— On reflection I am certain that Mr. Devlin cited. ' »• 425 - an authority showmg^at robbery by land, and piracy at sea wem WvJT™*? 'P'"*^'"' b/.land and by sea. Ld I co^dSto bothofthemînmynote8,ifitwereworthwhae. But in rSr a ref^nce to eiAer Vattel or HaUeck,,which appear to be the bSks moflt froquentlv cited on *he other eide, wiU Jhow thaf Z^« aplesappIicabfetotheBe twokindsof w^^ although m the case of warfarè by land, the abstr^t riS^nf ; plunder and pillage is restricted & p«^tice, tmTlttt it gevails m foU fowe. And tibe quSon'jusT mîde from HautefeuUle M precisely to the point. Itv fact, as tC otW te^ fr*''T.P'**i*' Pi^^^y a^i^ «>bbei7 arf conveSe tenjs ; the one being the same offence by laid that the Xr 18 by sea. Mr. Johnson admits that there is no case^wS it bas been held that the captor in such instances L I We' spoken of, and ^ his authon^ties refer to, waTheldAunUaWe âj8 a pirate by the municipal tribunals of'the othe/bCrent There is ntft only no. case of this kind, but th/possftSr of such a thiug bas never^ been hinted at in W>oV On the contaLry m the veiy books cited by the other ààe, it îs laid down ?o în">wf^' «>5the iuju^ed biigerent hrnôtUnVî^É47er todowiththematterj that the belligérent.of Whom the sMb wal his own d^ty and sovereignty. It is he who says, you shall n^t r corne within my borders, and ise- them as a vantée ^^oundfzSm whch to make war on myneighbor. Ahd if y^ do, I mZt ^^^^•'X?' """^^t '^ r^ «*P*"^«' «"^di^ill fo;ce yo/to punished bv the au honties to whom the property^Iongs, nol- can Aeir compfamt ag^t him be hstened to'în Ae?ourt8 o? the neu^ ^L nf"^-^ -n T"".'"'* *5** *® ^'^Pt^^^ "^»y be annulled by reawn of its illégal ongin,; for that Ule^ty dis not con Burlamaqui, Wh«M|U)n, PnilUmore, and Kent, are àU to the same effect. , ; s This, then, is undoubtedlj aie correct doctrine, anid, it cannot be 4isputed. !|?o set the matter at r^st, Ladoiit, b, 1^e,wQrds of thèse citations, that " hostilities cannot ïawiMjr bé exercised within. the territorial. jurisdiction of the neutral statç'! (TVheaton 713); that " captures made by the belligerent cruisers within the limita of a neutral state are Ulegal '^— that ^ey are iUegal also if the «xpedition which makes them " prpceed^ from neùtràl territbry ;" that " no prpximate acte of war are in any manner to be allowed to ori^nate on neutral ground l"/"^**' ever^ voluntary entrée mto neutral territory, with lïDstue purposes, is ab^lutek, un|aw- ful." I do notthinjc I hâve otutted onJÉl proposition of hkw to be found in ail the authorities citewon this ptibn Im li^uiist a nenixal for permitting the yiôl^t^où of its neubral jui^Q; ^ôtt, 18 tp eau ito jg;0Teniiiien|; tp accpun^.^r jo dpiiig ; ,^d to îoaké the T^fo^ of sftlai^tion k çtmf be^y'^lf thinlu pro^^fir^ > ^ > OhiMicéllor ^B^ènt States t!he dpctnne very clearhr on the pùcé ne:^ i^r âulèé. cited by luy leaiped firieqd on miia^^î^inij, ,Ue •** làent to ndse ine objecjiôh to a ci^ptûre ànd i^tle, fi>)iiadc^ pa^ •*^ violation of neutral rights. The adverse belligerent hàs no rigbt r^ \ >i 427 « il to^oompldn, when the pme^ is duly libelled before a compétent Court. If any complamt w lo be made on the part of thrcaD- tored, rt mu8t be by his goyemment to the neutïïi goverTleX for a frauddent, or unworthy, or unnecessary subSissioii to à ^ ^e yhole of the discnssiori in the three or four precedmg paires to the effect of the capture of a vessel ^thin the lindte of the neu- ^ i^''^'^'- '"^ "^^l"^ ^^^^"^ *^« transmission of the tîtle to the captured shui, or efifects ; with regardf to the neutral-not with respe^ to the belhgerent. The Jelfgerent is not statedChave any nght to find fault with the proceedipgs of his enemv simply that the capture within thU neutral territory, % illégal 2Zfî^^'K^"*'"J ^''?'' ''°? *^'^* *^« ****«'• «»ay vindicate its sovereignty by refusïng to acknowledge the vàKdity of the title 2?2 ?i,.îfl *"*'*\**^ «he^property to the belligerent from Triiom it had been teken. The learned Counsel oppSsîte duo^d rebutons of Jje doctrmeB already cfted f«,m " Wheaton " anJ 4J,5 f * .,TP*^g ^J^® ^«"7 ^Oï^s of those authors. I muàtsay îSil.î -^^ P®''*' ■ '^* *** advantage he proposes to gain from ffl!^^L« '^"'V 'îi', *'? «**** the coWquence%f kch K.n Kl ""^ T*^ ^''^^^'y' '''^^ *^«* coMé(iuence never bears any semblance to the one he seeks to dràw froîn this. For 3i«ton(je at pafee 525 General Halleck speaks of the différence S ^«"ï ^*r are entitled to. An/ this distinction waa^eadto us jtè great unotion. But m what way doeB it aid my tearied friend's ^ U "'/'?v *^®''® ****®^' *** when refege is sought 'wîthin &e bordera of the. netxtml by belligerent trpo^, those Ioom ïe Sn^i.^ ^"^« "^^^y ' '«'^ *^« prisonerg relewed. I find îfcÏT ^««Ïf""«««î«><»eta^pfl^tob'etreâtella8rohbe^^ «nd hapded over to the ordiminr municipal éoort^ îàt puriisMent w^ch 18 the remedy my learàeâ friènds fleài» to éaac^on 6y this autibonty, rf they hâve any oWéct at AU ih m&ag it. t finà ateo Mnong ttiese citataons from ÔaUeck, ampfe coiârmatioi of toy iZiy t^t ^"^^^ l^t* ^ the lieutral to make a violatidn if ^..iJ iJH L^ ^ y^ ■ ■ «"p_"g«M»i 10 maro a vioiatitfn m It w laid doT^ distinctly at p. 581, « on the pnnciplé, atated it. ,- ' T .1 , r i I' i 428 ". ■ " that tJie neiUral êtate ahne ha» been injwed by the capture " that the hostile claiinant bas no right to appear /or Uu purpote of « 8ugge»ting the invalidUy of the capture^ And be saya that It ,18 the nght and duty of the neutral to restore bboty captured in vioUtion of neutral nghta, if it cornes bto the possession of the neutral state. But the référence t^ ik- m .: 429 , And we are doing so. We hâve taken means, and at great expenae to this country too, to maintain our neutrality inviolate. And thia rncureion and the captur^of the PMlo Par%m» hâve been made the occasion for domg so. We hâve taken the most energètic pre- ventive^measures in our power ; we hâve passed extraordinary laws fflving to the Government extraordinary powers, in aid of ourother efforte, and moreover we hâve under our laws provisions under whïch those who commit such acts can be punished. Not by extra- ^ting ^em, but by submittmg an mdictment against them to the Grand Jury now sitting, as my friends opposite should bave done, if they thought them guilty of a breach of our neutraUty ; in «rder to their pumshment hère ; not by leaving our sovereignty and oùlr authonty to be \dndicated by our n^bours. ^ ,^\^«»''«r-T^® ^^ °®*'®" °^*^« ^^^^ do nol require to be told what ttieur duty is in this matter. We never pretended any- thrng 80 absurd as that parties could be extradited for a mère breach of neutrality ; but for committing two offences, a breach -of <^ur neutrality and another offence. ^r.^M«)tt.—Idonot pretend/to dictate to myleamed friend what his duty is, but I find tha^ifUe books it is laid down as a propo- sition of law, as a constitjjtiônal maxim, as a doctrine comportmè with the dig^aty of a^êèVereign State, that if a person be found within its lumta-^ged with two species of crimes,— one com^ mitted withrn, and the other beyond its bordera; he must first be dealt with for the offence committed within its own jurisdiction Wore bemg handed over to a foreign State to be punished for thé ^e committed there. I tell them that such is the law of this Eritoir«. And I say, that if they argued in Englandthat thèse menWw depnved of their right of «sylum, and should be e^ra^^^ because they committed a breach of our neutrality ; «r as the lear^ crown officer puts his most extraordinary proposition-— because thèy « cominitted two offences, a breach of our neutrality aùd another,\Jey wojald be told— if you prétend they committed a breach of nedtrality they must be committed for trial for that, before we can hejûsa demand from a foreign power for extradition for any other offencèw And that is British law, and it is in accord- ance with British siarit. and British feeling. That is the law, whatever this govemmeiàsof Canada may tiiink on the subject. JMf", i)er&».— That bas nbdhing to do with the case. Jfr. ^Mott.— That is exacWmy opinion. No such principles or sentiment» bave had anythingiadowith the conduct of this case. But, wjtuming to the point itoder>iij»usBion, I shall refer to an àtttlMwitv of flomfriralue; ï cîte^tf^«©rtolaû, 299 aar fbîld^ff pages whore he says : \ r - => *v r !• \ V •'•■'Wi^Tf^n • ' 1' t 480 A " L'illégalité des actes d'hostilités exercés dans les eaux terri- " toriales d'une jouissance neutre, entraîne, comme conséquence " directe, l'aiégahté des prises f^ies en dedans des Jimites de ces " eaux.'* And aftcir oifang the passages firom Wheaton already referred to, expressii^g the same doctrine, he adds :— " lîtous adh^ " rons complètement^'Taetée doctrine et a cette junspmdence. pra- " tiqué. ♦ • ♦»» ■ Hère, of course, the rule is asgerted whîch my leamed friends opposite hâve contended for with such yehemence, namelj, that thé violation of neutral territory is ilIeg?aJ.\But what is the consé- quence ? I shaJl read this passage as exhibmng it : "Puisque la nullité des prises ainsi faites n'est rien d'absolu, "qu'elle est subordonnée aux réclamations de l'Etat neutre, " le fait est remis à Tappi^ciation de cet Etat. C'est à lui à "juger s'il y à eu, ou s^il n'^ a pas eu, véritablement atteinte *> portée à sa scjuveraineté ; s'il doit à sa propre dignité et aux " obligations d'Wnpartialité que lui impose sa qualité de neutre, de ^ .^ ™^ . ^^.v,,>.A U.UUUUC i^viauiuuuu. xkuu nu page 21^9, jn speakmg of the exercise by the neutral of its right to tetwn illegally captared property if foûnd withm its juri8diction,he says : " Il ne fautas croire qu'en cela l'Etat neutre se rende juge de " la validité ou de la nullité de la prise, au pomt de la querelle " des belligéirtuite, et des lois qu'ils doivent observer dans leur " guerre maritiàie. Cette question est entièrement hors de son " ressort. Mail si des actes d'hostilité ont eu lieu illépijmfement " dans les eavtt qui sont soumises à sa souveraineté, il est eia son " pouvoir de. faire cesser les effets de ces actes ; en usant de ce " pouvoir, il ne fait que maintenir son droit, que prêter mwn-forte " à s* propre cause."\ M. Hautefeuille proAulgates a similar doctrine, Vol. I, at pages 834, 335.— But I think it is possible for us to find examples nearer home, which will shew howfar the violation of neutral territory affiscts the act of one belligerent against the other . We can find récent mee^edents both in America and in Éngland, which settle the questioù iiï the sensé in which I understand it. We are ail familiar with the fate of the " Florida " Now, she was captui^d while actually under orders as to her cruise against thé Fédérais, from Com. Barron, tiië dirfo- matio agent of. the Confederate. Sti^tes, at Brest. I hold in my hand the le^çr^writtei^ «pd dated in Brest, in ihich he gives^ minutiBi Biaà cf^tailed directiç^ to lieutenant Commander Chas. S. Mq||^^ ^^^(Mederatft States Navyf ^ t he n hw B g^OsfrHBfc^ Brest, with ois ship ; as to the latitudes he is to cruiM inj^e period 'V^ i ■^^ 'iWJ'i^ -t t-%. ^ •'tlh •Vljpa-' 48X t ♦ S ^ î* H' "^ *<^/«°»<4° >° one Piace or another, hie conduct toVârds neubrata ; and winda up by orderiiig him, in caae of doubt to recoUeôt flfat his chlef dut/is to dô âU L ihiùry hTc^ toté enemies of hi8 <$ountrj. • ••'«' •^i?fe ?*? ^«*™c*î<>^ »w«ed to the conunander of a Confed- ^S«^î Î^2'.?T> * neutral port; bjr a Confoderate °J»^ »«eût, thén résident in a neùtrâl port. « Thia steamer was »w î^ ffle|aUy ôwtûred by thé United Status war steamer tiona ftom Com. Barron weré found on board of hèr. A remon- '^î- jl^^TSi^^y ^^"^^ *^ *^® ^"^^ States Gorem- méftt by ^e Bràzflian Govemiiaént, coinplaining of Ûie gross vidlatfon of ber néutraJity cômmîtted by making this -capture ; whereupon a species ^ apology t^fa made bv the United Btates ^J*;f*"^,î*- The "FlonV^in'tbe mean4e, had teen S aM cotdd topt be-restored; but, her officèrd and Çrew were réleased and sent I thiric, to Mand. Now, supposing It to bta^e beeh a Violation ôf ^neutralfty. for Com, Barro^to Lie oMeft for a cruwè âgâinst the commerce of the Unîted States, whfle he was rendent m ÎVâncè' ; which oocupies tihe sapé position that Englàîid doés toward the^ beffigerents^how îsTwe^ever heard a word of complaint againslfc Mr. Barron from the Qovém- ertmént thàt he sïdtild be *^k oit ôf France/' He lias nëverbeén interfered.^thforhiSôoAMthis resi^cl, ap| àtittSerin that country. The position Clay in Canada^appeàr to they did wai eialîtly the sanve t! of neutrtdiïj' in thé bne case, Barron in France, and of Mr. ^en exactly simîlsr, and what '. And if there was'a Violation .. I liZy ~ ~' ""V ~~"» ""^^^ *^ ^ *he oth»; But what is more to the putpose of this argumentl| howis it Ûiat Capt. Morris was ti;eated aa a belhgerent ? My lea^ed friends would say, his emedition vas authorized in neutral téhitoir, it'procée4ed''from neStad-tohitoi^ (thé « Florida,- in fact, never «tw anV étheî^ S?ilTJ^T^7/*P"^®^ <*^*" charàé^sMîawfiil hosàity. If thé St. AlbanS i^ders lôst the chàrii<^r^â!MlKgerent», because th^,^r semé of aiôm, at one tiine or ôlÉièrp^d throuafc, or came "^ ' ' ■ ' ■ ' " e tftpy Btarted from rate croirief were not tréated aë pirates, , France and rébèîvè'd ttéii: brdérs thèi^ t • -^ *^t?ïïl^S*^'^^*'^?TS*®¥^»^'**«<'<^^^^ theiRorida was a m^2 ^* *i«' '^c*^ «»df <^rt:w côidd i»vé^n tried at Bahia S£S?féî'^^*t-.^ AMÏfeàm ^èn«iM, ^^out rendérîng it necessary **?T®?;^*!' !*^i^^ *!^P^^ ^:^}3 co^ctr^tKit ttç iScéptio»: ■-' i-i 'M ii 4- -:::*« ^<|. ♦, ;l. ^*^^*." ^T^'.jtt' '^-^z iàT^''r*'^*^s8ET'''^"' *'^ ■■VT-iy.Y^-":-ff^F^"^^/.'^^- ■ 482 Vithin a neutral territory, of ordera for a hostile expédition, takes from that expe(Ution the oharacter of lawful hoatilitv, ana from the parties engaged in it that of belligerents ; then MorriB and 1^ crew were as much pirates as were 1^)002 and his party rohbers. And we may go still farU^e^. If a capture dv a belligerent in neutral territory is ilwgal in the sensé in which mj lewmed frîends saj it is, namelv, sothat the beUigerent charaoter of the captbr is destroyed — and so that he betjomes liable as an ordmaiy robber or pirate to the municipal ttibunàb of ihe oountrjr ; then the oi^tain and ofl^cers of the Wachusett were guiltj ofjnraojr for their capture of the Florida in the harbour of Bahia. There is not on record m ail the cases oited by my leamed friends, so grpss a breach of neutra- lity as that committed by <àe Wachusett ; nor is there a case in Âe books, wblch so complietelr exhibits every élément of illegidity in its most glaring form. And no one dénies thfit it waa' illégal. But would any one in the face of the world hâve assumed the position that because of that illegdity, the Wachusett's people were deprived of their character as beUigerents ? The pretension would hâve been reoeived with ridicule by the civilized wwld — ànd yet it resta {iilly and squarely on the proposition of law my le&med friends ire insisting upon. ' But we nave other cases in which such questioiis hâve corne up, equally c9]4gerents, tiiough the vessel was buîlt in an American port, was bwned by American <»tiK6ns, aiid manned by an^Ame^can a>eW' G^ere was no ohilrge of piracy made by g^àin. nor wotJd the Um t gd Steteg We listened fo sucïï ijînfStânmi ïhe"pôeition thej wF' îioeitico they wk wa^ thèse men corne witim» our jurisdiction, w0 will thïs— if them for 488 Nor was such a preteSaion urgedlEfâfL nî r'T'**",'"' ^ «apto al. entered the v^^e^^le^f^o^ ^t^^ the American territorv at iCvr^^r^fc^v ^ . ' -^^^""^ en*«red person or properfcy ofl Fetral tilIXv "''• **? ??' ^""«'^«d t^e pnnciple sthesame a« far m îi/ lii j u . '^*°"" 'a^^, thç îww American territoA— when «,«V^ .* *«" "P™ - tô puniduuent for a bS o? ^nSLl^T'?'* ^^'^^ '^°»« Niable belligerento.-Bri4Sieote&2 ^" k- '^«^^^^ *^« °«»«r; péril, as regard» thel oSS lawg b»f îî« ^ *^ f»^ <»•> «o at their ^ liable to bel^ated l ^U^^^'^i X^^T^^^ ^^n^ Houae of LordflontheOuee^'TXSf^^?' • .*ï® <^«^«*« » t^e point ont that British subWte in fkT^^ parbcular pains to ' oi thèse atatesmen and ^wv^raw^rA S^i And the déclarations no tenlMjtment thev might pasT wouM h* « J°i^ .' *»''«» and , ,tish^yernmtect itself, and not to n.ent ha^ consta^r'refoîed to en«^M '^^ -ïu** ^ ^"«««^ ^^^ver^ at the^tiffliti^ of oîhf . r ^*' ^*'''' ®'*^«'* P«°al «ï* otherwise mightbeesg:!^5for£se?uritr'îhé:h-' -gg-ted thatTe^' m thèse matters is to /rS?c^«- J^ï^^^•^*^''^ **»« «*»*»<« book the matter is clei^ ^«T a AimiT u^ P"«' l^^ : '^So far when we corne to co^f^the relaS^.,- wl^"' ^^' ^ ^^se neutral sovereignty créâtes^ Ww^f 7i^''^ ^^'^ ^°^*^«« «^ the belligerent who may hZ fce^ ^'.S the neutml, and the other Uponfthis point I hU corne i^^T^jr^^^^^^ V.^»»* violation, curate talklngand writing,Thithmkes^îL- m ""'^T' ^'^'^ ^^- ascertain and establish thé BtZtut ?lt ^«^^^l® a°d necessary to proposition which I ^Ih to tSeZu^t""^^ '^' fondamental importance of which I shïïl S^Hv Z ^'^^1'" ?**«°*'^°' C*he i8 injured by the act of t^ oEZWr^ ^ *^?* *^« "«^t which neutral govenmient,rd not thW.^^^^^ ^ **^« "g^t of tbe im^rtant conséquence ithln^nfîn*' •'*'¥.' ^fl^^^ent. The neutral. If the neukardl^s not .w'!'"'^ ^* ^" '"* ^/ e%erent. la injuréd partyf r: the Lu râl st^''^ .^' "^^ «^^^^^ «^ *ho of which eve^rirjuristX^lji^^^^ <*^t«^ct,OB the importance Such quotations as thèse explam theawelves Th.^ « * text and commentary. Thev «K«w T^ J^^ ^^ ** o»c« effect,^f the viouSSof our LéÏ!L^' JT'^- '^*'»^°« ««d such violation haa taken riwe whthlîl ^ «'««e prisoners, if .ay been imured by theb «te' Zt^^rf • ^ï^'^ "^•^i!» ï»»*^ ^ m ■ I '^■#1 X '1 LW,*ï4.,;:isMi^^: Harcourt tells us, no foreign power has a nght to complain before oar Court?, of acts afiFecting our neutrah nghts, then ail the arguments based our a breach of those Tights, ^y which the . Fédéral Counsel hère hâve sought to induce your Honor to extra- dite thèse men, must go for nothing. They can receive no consi- , deration when urged by the représentatives of a foreign state. ïhey hâve no right to use them ; they are not injured, but we , •our neutrality tews are " made to protect, not them, bul us. ^ Who is it then who argue for the extradition of thèse pnsoners because Ly hâve violated our neyxttB^^ ? or if they are P^f ^^^l^;", f «^* phrises, who urge that the violation of our nfut^ality by the prh. Lers has rende'red them Uable to be ^^^^^^dited ? It is our ow« Government ; the Government of thi| country, m which Éhese men hâve sought an asylum ; which sends its officiais hère to insist that because thèse men hâve violated our laws, (as they say) they are to be held liable to extradition, though-otherwise, as belhgerente, they would be entitled to protection. It w the Crown officersj-ho cornue hère pretenàing a Wnd of impartiality, f *« .«^«ïï to breath declaring it to be th^eir duty to use their best endeavomto hâve thèse men extradited. And m the performance of that duty it is they who would deny to them the protection of their commis- sion ; who would deny to them even the, nght of exhibitmg it, although the Sovereign they profess ter represent, has solemnly pro- claimeîthe right of thèse men to those çrivUeges. It is in the name 6f our Sovereign, who recognizes the f ^^^f "^«"^ «^.^^t"" f the Confederates, that your Honor js asked to deny to thèse Con- federate soldiers the rights of belligerents ! And it ifl m the name of that SoveVeign, who« laws they say thèse men ^ave violaWld, that they ask you to send them to a foreign country to hâve that violation avenged . It is the first time that the name of the &)vemgn , and the honor of this country hâve been so desecrated and degraded, and I fervently hope tl^t it may be the l^t. Iflweire to examine this case from another point of view, 1 ' beUeVe Ishould not hâve much ' difficulty m shewmg. that the ' -"'Treaty could not )»e held to apply to thèse P"80'^«"' '^^'"^ them M rebels and therefore as iy)litical oflfônders engaged m an act of treason against the sovereiçn power of the state^ ^- ^ Jlfr. Dev/in;— They were soljiiers when they cottntenced , nl)w *^*&?!^SoS*'believe insurrection and rébellion we usuaJly ■ regarded as poUtical oflfences. The rulç that pohtioal f^f^^.^ notmuiaerSl to be oomprlsed withim the proviélons of extradition ^oh we rely, and\as béen sustained by,the oitetion of n^erous authorities. I wUl refer however to the reasons for this exclusion, *v • ./ .« .. Ë^Mi^yàk-' • ■'■ [ 437 ^ Ihe propriety of «reemmt»^. . , jv^°'°" ""'"'"'y «tated thlt .|o„^f L Jpart,rrir>e^L Itt^' S?G°°c"'œ™'- thÎ3 theory as a reason whv Pvfroriu-^ 1 ^J ' ^^^^ "^es to politic^^ffeXr He\;f ^'^"'^ '^^ "«^«•- ^e extendfed ^ " considered as an interLed^lr^^^^Tlue^ "»aj be . " ment is indisnosed fc^ !?^ ,^ ^' ^^ *J®refore another Govern^ " of this dest'^on 'î^ ^ "^ ^'"''"^ '^^'^'^ ^ ''' ^th crimes And he points out that in^cases of « civil war " nf » i question." And L ouote Sl^^r'?"""',' ^*^"^'i m the and „mve„ally stigmatized .a degr^S-^d^ïono^d "'"'""""^ ae charg, before granting ext^ff; td t &r^^f2^''«°.'° agrée so thorouehiv with h\m fKof uJ ^ , "^^ author to »lyf"laSr^t:d?r\7;lL^^ ^V^î^^^^^ -^ «^K- W«nUfproof,an'^drh:tr.'S"eql^^^ 13 consistent with the prévention of aSe 'Th!? '^'Z'"*" ^ tem is, that confidence is repoL L t^fn J ''^'"'^ °^ *^« «7^" its administration of criminarUw tÏ! 1T^ g^^^P^ent and h ment ought to be ti.e chTeV ^mntee aX^^^^^^^^^ it claims any fugitive throueh tCnZ-S j ^-T' ■^^' ^^^erefore, and gives a JeasLbîe ^f 'that' ther" ht be^'r"^' ^'^°"«^«' gation by the officers of police and tll f„n!l - P"'^'" '°^®«*i- prelimmarj stages of jurSe iÎ!ul?f^^^^^ to the conclusion thatC iZ' ?n 1 t ^^'^ investigation had led^ charged against h^ iî^t Ch^ T.??)?" ".«"i^>^ "^ ^'^^ «^«««e place, uporproof oTidentiW^t V^^ extradition should take Testigatirn, Brh'a:Vtl^L:LtuK;ke^^^^^^^^^ ^"^ ^"» - of a prisoner in this countrv ' " ® eommitment I ': m:-.. -^ t aJu'^-aj'^ 1 i^ E 488 X «flfect, is paralleled by the e8tabU8|\ed practice of this and other coun- triea with respect to the ôivil la#." ■ " In fact," he says : " the rule, thus clearly stated^ bas been allowed in practice wherever qUeptiona under the Treaty arose.'' I hâve quoted this at length, otherwise it woùld appear to be incredible, that the " rule thus clearly stated," which " bas been foUowed m practice wherever questions under the Treaty arose — is actually the statement madoby the author, of what the law and practice are »w<,^the same paragraph containing a directly contrary statement, which he déclares represents what the law and practice are. This explicit description, which Mr. Johnson cites as exhibiting in the words of*ewis the condition of the law,ever since the Treaty ^ came into force, hàppens to be a description of what Sir G. C. Lewis thought ought to be the law, but which he clearly states in the same paragraph is not the law. The passage cited by Mr. Johnson la the latter half of a paragraph, which, in the previous portion of it, refers io the Ashburton Treaty, and explicitly finds fault withthe necessity for p^f under that Treaty, and for an hivestigation before a magiétrate by méans of witnesses examined on the spot. And after pointing out ail that is requisite under its termSj and declarmg that the process is both costly and difficult, he goes on to shew how he considered Buch a law ought to be framed, and tt is ihi» expresnon of hit idea of how the law should be changea, that Mr. Johnson cites with such approbation, and with the autho- ^ty of Lewis' name, as a clear statement of what the law actually is ! So extraordinary a perversion of authority is not easily accounted for! .. - A But retui^ning to the distinction between ordinary enmes and those of a poîitical character,— as for instance, those arising out of a civil war, — I hâve been very forcibly struck with the illustration of it by Mr. Lord, a distinguished advocate in New York, who who was one of the Counsel for the defence in the Savannah case. He argues that to constitute a crime against municipal law, an act must be such an one as everybody.condemns, and is recognized by ail the world as an offence against thé law of nature, — an offence which would be pùnished equally at the place where the crime was committed, and where the party was tried for it. And he points out that it would be shooking to the comroon sensé of mankind to hold that an brganization of ten millions of people could not justify €ven the killing of a chicken without a charge of petty larceny ; that for every shot fired and man killed thwe could be a trial for murder, &c., &c. (Reads from Savannah çasê, pp. 121 et teg.) — Atï^ iiî fi mt t hêro can bo no doubt but that th t ^ priso n^rfha n ^ r a ga wi- ed throughout the United States as poîitical offenders. The évidence of record shows that they were such, if offetklers at ail. But there is ■/ tr . ,tl- T ' -." .439 - ■ ■ "^^ . ^ • proclamât on of (Jeneral Dix, they were apoken of aa » rebels "— aa "rebel maraudera :» and oLrs we^ given to ahcS the^ ' do^ wherever found. The placard issued by the St AlbZ banka, désignâtes them in a aiiiilar manner. Eveir newanatlrT ^ ont ^tt '"' T'y/«<ï«-l organ hère, maSe tlScK rpltLS*?;^' f '^'"P'^* f Sainst, them. Mr. Sumner, Z Ce ÎÏTÎ^ '^r y.T ^^^*^'*' attributed fhe greatest wS tt« n •^"^°l^^'' '^^^^ P^"*^^'»! ^i«^«' l^ad laid the plot the S<^t!/"^-'7 ^^ '^7^'^ ^"*- The univei^al clamor in neutrShv re5T* v"'i °°^*^y' ^^ ^^ a"eged breach of if n?itLl!fv ;/ ^'^ "'^^ *^** character, it waa no violation ot neutraJity—it waa a common robbeiy. Ordinàrv robbera dn no nae to the dignity of violators of neukïï riSta And it Cnl ^uP®^"^??" *^ «®°^ *o Richmond for évidence, His Excellency the Président of the United States, himaelf chaiSJ preas of the Uruted States, herM^erals, her senators, even her S^tW r* *"^' exfecutivmcer déclare it to b'e S one voice— that thèse men are rebels, who, on the 19th of October last owed Zf^"^ "^ *? ^* '^ ^«^^"'^^ '^ *h« State to S rey tZif^fT^ 'li "-^Pf *H'y ««bmit that^r Honor must hZ Uon Sr^? T}^gJ-«f«ge>ere from thelèqsequènces of kS- lion,theExtraditio»Treatydoesnotapply. . ^m iufl£* S îf'^^^d.frifd Mr. Johnson, fearing^^perhapslith justice, that it may be found at least doubtful that any caae îias Sty^'X *«^i.*l^« PriBoners,on the charge of "h Jving been guilty of robbery ^thm the meaning of the Treaty: reprJaches ^ZZf *^K '^r'^T''''' character of ihe defence th7y T^up SÏS/''^'/ IfT^^g tfa«°^ that they should submit £ «^vs^« wtr^'^.t'^" "^^^ byem,neous"';àtiocination. He' S« ^! '^'"îu **^,*^''' """^ " absurd^md iUogical in the ex- SlTv • J ^^.?®y ^'^^ *" «»^««"«^* defence ; are able to jus- tify thy ma bjL t h e an tho r it y o f th o ir Qo YC H>meat rtba<.ti irir— ^^ iser «omtry, y,l they do no» wW. to go to the ÛmtSd States S 1 Ji .r\ *.-> Bore or a(m^ upon States 'Coart(ir,j \\ IQ ^ é tried !'? And th^ other CounseJ'îji^e touc iiiiûe théine, extolling the juji^^lof tho ^ ^ ' àssuring your Honor of th© perfeçt impartMjjty ^ ■ ■ ' Now, rwî>qi[d like t«|lBp^ jeall/ expect in the Feder ' United States hav© Jong 1 iparti|Ji%fi)r the learnfa^ ^ à sensé and vigor of thêirad^ -,^_ >l7 still deserve the samje high [jnatters unaffected by polij^ttl «on- „ ™ j^àoned if in tho§e respects, flam Içd tÊ^^ihBwne is not without stain. l^t ;witb- out câètin^ *0^ ''°» Président Davis.-the same iw^fJ^^ 1:2!:' "'^ T"" "^'^ ^^°« they must rely to sàve . them from Cwn»»tion and exécution as robbers. In chareing the jury, as to the vdidity^of that defence, Judge Nelson says : ^^ We hâve said that, in a state of War between two nations, the - u ^f mmissioa to private armed vessel» from either of the bellige- "•Po'îS.'^îîiÏJ ^ '*®*^'''^' '^«Po^ding to'the law of nations, in the « tK î^u ® T"?^' ^S^'^'^ * ^^^g® of ro^bery or piracy on " Soh A''?^ °^ which they niight be guilty in the absence of ,, juch authon^ ; and under this principle it bas been insiàted, by " riy®? «T^* ^'^ .*^® prisoners, that the comtoissionlf the " S 5 f Savannah, whichliaa been given^ évidence, affords " rnnJ T i. ? support of this position, îlls claimed that the ^^ Confederate States hâve thrown off tlje power and authority of ^^ the gênerai Govemment; hâve erected a new and indepenâent « <^ovemment in its plade, and bave maintained it against the whole ^^ nulitary and naval power of the former ; that it is a Govemment, ^^ at least rfe facto, and entitled to the rights and privUeges that « Jf wng to « soverei^ apd indepgndent nation. * * ♦ But the u -An,^ °?* ^^?™ ** pmnent or material, to enter into this wide field of mquiry. ïhis branch of the defence involves consi- derations that do' not bebng to the Courts of this country. It « TiT.i *^^?"°^''^*'"" ""^ ^^^^ P'^^"«' politisai questions,, ^ which bôlong to departments of our Govemment that bave charge of our foreign relations-the législative and executive depart- ments; and, wÈen decided by ^W* the Court foUows the déci- sion ; ^à un^^^^^f^g^.,j^^^ recognized the new ^^^overnmmt, timmôfthl nation ^mot. Until this recogni- tion of the WGovemment, thé^CeWare obliged to regard the ancien^étate of things as remaining uncbanged. * * *. And if this 18 Ihl ryle of thel-èderal Courts, ^ m ca«e of a revp% and érection of a new Govermnent, asit respects foreigrf natîoS, ' applmble when the^ question ailses in re- fh more iè the ride appll <,'' " m^h mon :" s^t to a revolt and the érection of a neuiGpv^mmt^^mn the hmtts, Undugainst the authority, V the ^ovemmenfUnder which we are enffaged in administeringXihe léws. Afid.itx this «on- « jection, it 18 proper^ say that, aà;^he Confed^te States must " y»* be recopiirêd^ g tft poUtic a l dQiar^omZ ^ ^ -mf^'^^^ " Govemment, i^p**"^- *^ ' ^^- ' n---^ »« » " country ; n^melyjl %., ^ be recognized by theACcMiirts et %^ *JatiVe aiid executive aepartments, wà »,' ï' \ •■ I*.. / \l- :i .1 i ' 1 *!> I ffl r it r^.. \ "\ 442 *' must look to the acts'of thèse departmenfcs as évidence of the fact. *• ïhe act SaMs) act of the nation through her constitutional public , ** auAorities." 1 And when the good feelings of tlje jury, revolting at this, per- hapa strictly le^, doctripe, led them to seek further instruction as to whether, if «hey believed the accused were ôcting in good fwth as belligerents, they mi^t not take that fact mto considération — they were told that they could not. I.think my leamed frienèvrill admit that this shews that I hâve ^ not spoken witKout authority-^-when I stated the kihd of law that would be admmistered to thèse men ; and in.thus pointing it out I do not mean to assert that Judge Nelson's lawi^as bad \vn\ from his point of view. He has the réputation of bemg a leamed, high minded, and upright Judge — anÀ very probably was perfectly right in Isw in declarinè himself unable to allow any weight to a plea of belligere^ncy, until his'Govemment should hâve recogmajsd the state of var. 'But ail this only the more forcibly impreases upon us the frightftd mockery, the ghastly irony of the proffers of a fair trial to thèse prisoners. The trial will be fair and lawful according to the law of the Fédéral States : — ^but that law ignores the defence which those who promise a '^fair trial " know is the only one to be set up. And while they talk of the " fair trial? of that issue^sthey know that it has been long ago decided against the prisoners ^ahd never can be «ven presented for such trial. They tell the prisoners that it is " illogical and absurd " of them, to object to go over to the Fédéral States to hâve their defence of belligeùrency tried— though they know, not Only that that defence cannot be tried there at all-r- but that it is the only country in the world where it would not be a fHdl and complète "defence tç the charge of robbery. My leamed friend blandly remonstrates'with thepriwniBrs for tiieir unreasonable conduot, in not at once submitting themselveà to the impartial and patemsd tribunals of the Uni^d States— when in fact those are the only tribunaÈt in the world which would entirely disregard— aà an abeolute nullity in law,— the only defence they possess ! I vei^t»ire to say that epithets much more severe than those my leamed fnend has osed, are jostly due either to-him, or to our patemal (^ovemment whose mouthpiece he is — for placing before yourHonçt, and bçfore^ this coustry, an argument at once so faliie, so treacherous, and se inhuman. But even if it were posable to get such a décision as to the law, as wowld admit évidence for the prisoners, how are the witnesses to be got before the Court ? Will esoaped prisoaer Adjutant General Withers venture hiiose lf m the hands of the Fe^erah;.? Will Mr. Stone and Mr. Béttes^orth go to St. Albàni to Wl the» Chicago -experieiwea? WiU Mr. Cleary place himself in a^w England r us jitness box for examination as to the secrets of the départaient of State in Richmond ? Reallj, the more I examine thig notion of a fair toal for thèse men in the Northern States, the more hoUow an^ répulsive it appears. ' T IJ^Ï'J^l '* P'^*^® y''"'' ^<'"<>''' *^«* ^^^ ^«T great importance -. I attach to this case, not solely in the interest of the prisonèrs, but also as involving important national considérations, haa led me into a more lengthy discussion of it than was fequired either by its in- tmsic difficulty, or for the full de.velopmént of our pretensiong. My object hM been, as I stated in the first instance, to seek to discoveV troiii the évidence of record the whole of the facts as they really occurred ; and then, leaving the propositions of law on which we relied m the first instance, to rest on the arguments and authorities ot my learned and able colleagues, to foUow the Counsel on the Îw7k- !i^"'u^\*^^''; ^'•g"'»«°t« in m^J to those propositions. Ihat this duty bas been long and arduoGs, necessarily follbws from the tact, that dunng the great^r part of three days, the ingenuity / ftid research of four of the leading Counsel at this bar, hafe been employed in heaping argument upon argument, and authority upon authonty in support of the application for extradition, and in oppo- sition to the pretensions of the defence. And so arduous bas it Deen, tùat with the most sincère conviction that we are right, and the most eamest endeavor to show that that conviction is justified, 1 am not satisfied that I hâve not fallen far short of wh# I should hâve said m support of it. But before I leave the caseinyour Oionor s hands, and even at this lato hour, I must entreat your attonbon to some considérations which may well incUhe you to the «de of mercy, if the balance of justice be in any respect doubtful, Ihe View I désire to submit is one allied to, yet différent' from, the merely légal and technical arguments whi«h may be used with regard tothi8ca«e. ^^ontend that we havi^a right to look at the spint of the Treaty, and of the statutory enactments based upon it, .--and that we cannot forget, and hâve no right to overlook, the changes which war bas produced in the States with which we liade T^^ m-.r^^^ '" J^""" -i:ite*'**"« ^'*^ *ba* State. « War," ^ys «H*^ ™*''^' ?«ff«ct^haiige in the mutuel relations of ail Btetes ; more immCKl^Pf ^nd directly in^ the relations of the ' " ÏÏS[*''^/o w*'*^-!^!^' 5 but mediately and indirectly in the relatâtes of States w«îch take ao part in the contest." And what enormous and radical changes bave tfaus been eflected since Pjssage of the As^urton Treaty ! When that Treaty was pasped, we and they w^n a state of perfect peace. Nft prospect JWM fart her from t h at j i | a t. prMprûu a ,MMLL>ppyi a an^, W :i'^' \ 1: theMtred,flie bioodshedT^^ rm désolation^, that hâve spread tl)|m8elve(» over its faire» ■ 0^ » ^ .'£« ■"■*. ' J! % Û'[ k'ÏV i, (I m I ■;^i«: 444 '■•^ , ..."^ % iJr,"; m . r % -• Peace tben presented her most Bmi)^|^ttMît, and no cloud fore- shadowed her departufe. NofjiiwPflipil1hroogitiout4he length and^ breadth of the land — à giganîic and sangttinary struggle, in,wluch brother is arrayed againsfr brother, - and father against ^ And it ia a strife exhibiting war in its most répulsive res ; war charaçterized by the most insatiable rapacity— ^the jnMl unbounded dévastation — the most lavish pouring out of trea- gamand of blood, that the earth has witnessed for âges. War is wàys a frightful calamity, civil war peculiarly so ; but history ■^ÎVes no account of any war in which such bitter hatred, such . intense hostility, hâve been developed. And not only men who , hâve Tisheà. and taken life, whose passions ' are innamed, and whose tbirst of blood ia awajcenedr— but thoae who uéùaHy soften the aspertties, even of ordinary lif^ now join in the gênerai crï for confiscation and destruction. Révérend divines, young andjEned females, vie with each other in the fièrent and most demomacal ^^)^^ demandil^ ravage and extermination. ,-,-J, jfow thé ïreaty waa made to promote the transmission for ^ . trial frbm onl^)art of this continent to another, of persons who had committed tsrimes of the darker class, respecting the char- acter of which North and Swith agreed with ourselves ; criiniiçl which Vermont and Geo^a mike prohibitftd, and which it was impossible alike for tjhiem, affd for any qther civilized State or people, tio.aâj^ve oftjr even to tolerate. ^There was^no inten- tion on the part^wfche Cfnted States, when ^^e Treaty was^piassed, to stipulatei for^the extradition for triai as criminalainr Vermont, of persons who-4verftua|garded in Çreorgia as darting and devoted ,1 patriots ; ajid fow^iPwhich Geoiiii^ns hëld âJ^be prwseworthy, if not heroib. TBe Worthem an4^'4apd the offences^lÈat so ^; . formed the subject màt^r o^jÉb and our agr«ement, wei*e oÉènces V which they iand we united in^HIrdiy with abhorrence, and as de- w j. sèriçbg ' of extraOrdtftary ei^pon9%r their punishment, in the "^^ iil^'rest of Our respective coi^unities. Now, what is the position of thèse meti, and the light in which their acts.are regarded by the parties to ^at treaty l The Northern States demand them as robbers. Tlfie/ press this demand with unparalleled véhémence ; and 80 violeii|b and unmeasured are they in thehr wrath, that their Législature, their press, and even their pulpits, resound with the opprobrious éj^ithets which are heaped upon the prisoners. The Southern States, on ihe other hand, dehberatelv authorized and 'direoted fee sets thos denounced . They regard those who parti- cipitedin them as g^dlont and^ttêvôtedinen, irfaaTÎBkedtfaeîriiT/ for their country. Their highest executive officers join in hurrying "^•: 445 ' - s -^ the papers and documents which are to aid in their defence. No pains, ho labor, no risk, no money, are spared in contributinjr to their aid and comfott, in the critical position in which they now 8ta^. In one word, ohe section of the nation with which we . madé^the Ashburton TreaW denounceè them as robbers, while the otber extols them as patrtots. Twenty mUlions of men under an organized Government, demand them |p félons ; bul' ten mil- hons, under another organized government, Qxi^ting de facto, claim them as meritorious soldiers. And it wa's with thèse 'tWrty milhonsw men, then cônstituting-but one community, that we made our Treaty. Surely if tliere be ail thèse internai diflFerehces of opinion betweèn the parties contracting with ns, it is right thàt we should carefully consider what we are abouf to do. It is nô ^^^?'WiJ^^ ^®^°" sinning against the law of nature, and agaihst 4oubts^ solfier whose cri pute as e: parties : gener^ ; respeqjjing the ^nonnity of whose crime no one rhom we are asked to deliver'over for triftl. It is the" le of thèse i«^)^s, |her ênemy of the other ; respecting "'\lity thére is «S^cte a 4>|ference and as fierce a dis- ibn any other qi^tion deba,ted between thèse waçring irthe man whom we are called to deliver over to one portion of the na^kagamst the will of the other,. under a treatv we made with bothlpen united ! "^ Thèse seem totpe to be subjects for your Honor's grave consid- ération. They are suggestive of much more that \might be said, and much more forcibly said, upon the anomalous state of things m which your Honnir is now called upon to act. But- the con- sidérations which arise out of them, personal to the prisoners, we among the most startling. Thèse men are demanded for trial. lu ^^ ^^^"' ^"**' ^^^ ' ^^ ^* ^^^ ^^^^ a trial as it woàld be\ presumed an ordinary criminal would hâve in ordinary times— -when justice is ^dministered in the United States by Judges second to none in leaming and impartiality ;— by juries composed of educated and iî»i*pendent men ; and when the raies by which the^ are guided, are,yjie humane and just principles upon which theijr and our cnminaï laws are alike based ? Your Honor knows, every one knows,. that noauch trial awaits thèse prisoners. It is / before Judges like Judge Nelson ; who must déclare their defence / inadmiBsible m law ; who must décide that the sovereign State of / which ^ey acknowledge themselves the subjects, is not entitled to' theur allegiance ; that the Président who exercises the civil power of that State, and the gênerai who commands its armies, are félons hke themselves ; that the commission under which their oflScers, fr om the highes t t o the lowest hâve fought. and hâve won the ad- "ffiiration of the world, aire inere wAuthorised licenses to rob and plunder— which can serve no purpose but to prove more çcjn- > m ««> ,^^ m ■^Hh i - ■''/p^f '^'/ i-y^-y:'^ >i-rfr:- Hf 446 (f. I clusively, their liability to a death oi) the gallows: it U befor» Jttdges who rule thus, that tBeir trial must be had. Aud befôre' what oountry will they seek their deliverance ? It is from among^i the men whoae daily literatare is the New York Herald~whose sabbath instmotion is from tibe tipe of tiie Bev. Heztry Ward Beecher — whose evening relaxations are the lectures pf Miss Anna Dickinson, that the jury whioh tries them is to be selepted ^--^those who daily, hoarly, readand hear with approbation, tiieir ^atest, heai and bravest, denounced in the foulest ma ttiost opprobnoiu ternàs — are tojudge of their actions ; — those who eeho the fervent aspirations of the apostles and messengers c^ Divine meroy and Divine justice hère // / /, y è- % ,./».'/ ( jiftJw '' I ï .1 ■'* ' : J '■:"-,'.ls \ 447 ^ _ , ■ Wbdkbsday, 2Ôth Marob, 1S66. iim%th, J.~In thifl ca«e, whiôh ia an a|»plicatioii on behalf of the Amencân GoTemment for the extradition of Bennett H. Young and others, I am now abont to pronounce ray iadgment ; and ia doing so will firet briefly state the facte, a« they appear to be^MToved in évidence beTore bm. In preBenting-tKeinjgenerS ally, fwiUiout enterir^ at tiiis moment înto partioulaiB, or into thoae «pecial points in th^ évidence, which bave relation to the particulâr objeotioni that bave beei| raiaed; I wonW'gt^te tbat on the 19th of October last^ Bennett H. Young and bis asao- ciatef, being in the town of St. Albana, St^te ©f Vermont, rose, upon the people ; took poeseenon df thebanks ; pUlagéd them ; set- fire or attempted to set fire to eeveral boildings ; toolc and beld a numhfiiï of (^e citiaena as priaoners, doring the occupation of the town r seized upon bbrses for themaelTes ; and were, finaUy, fired upon and driVen out of the town by the people ; exohanging sbots with them, to an extent which does not cleîarly anpear by the evi- dence--after having been apparently in Bome de^ee m pesses- sion of the town for about bàlf an hour. One man was «ïot in the gtreet, but under what circumstancee does not' appear. On thïs oocanion, a man n«med Breek came into the bank, upon bis own^buàness, and was aeiied upon, threatened with violence, and thereby waa obliged to rorrender the money he hàd in bis pos- segaion. Thfe ia the act ohirgçd aa robbeiy for which extradi- tion la demanded. The applicants say, that their oaae reata on mumcipal law ; they allège that Young and hîa associâtes h(kve >comimtted, aocording to the law of the Bta^ of Vermont, the crime of robbery ; that this offence waa committed withm thwr juriadic- tion, and ia provided ^r by the Treaty;'and that ail that ia reqmred for tbe extradition of the aceused ia, to ahow reaaonablè proof that the act waa one of robbery, wliieh, they contend, they hâve done. In gênerai terma, Aen, %Pi#^e the grounda on which the appheanta claim from the GovMa^ftCiJf thia country, the aur- render of theae partiea for trial, //m |iBnor détails of the facts, aa proved, having référence to particifar» pointa in the caae, will' be touched on when thoae particulâr pointa are diaeuaeed. / Now, cm the other hand, the priaonera atate, that the act of plundering the banks was nbt robbery; Mt ît waa devoid of thoae éléments, which in law oonstitute that offimce; that the ammm fermai waa wanting; and that Ihe aet ehargèd was a mère iaeident of the attaok on the town of St. Albans: that on the 19th October lasl, Bennett H. Young waa an oiBcer in the o*t«^ of the so-oafled C«MifedeTate Statoskrhd^f^e^^Bk «f fim^^ Béttténânt, tinder «n appointaient. »ade by Mr. Davis, of the lôth Jtoie last, ae signified to Mr. Yoang by Mr. Seddqn, th» SeGretàrT- II %( m t ' 448 \ of War ; that the other prisoners were soldiers in that army, acting under'his orders ; and that in the attack on St. Albans, they assumed, and declared themselves, to bè acting as 8uch.,officer and soldiers on behalf of the Confederate States and by their orders ^i alleging that they were detailed for the purpose, as a measure of ^ retaliation for the mode in which, they asserted, the war had been carried on by the United States in the South. ïhafc, in fact, the commission of, the so-calied raid was authorized by their Govern- ment, and that, therefore, it falls outside the category of cases pro- vided for in the Treaty, so that they cannot be extraditêd for it, because it wants the essential éléments chàraeterizing the offence for which underthe name of robbery extradition is promised. Now, the statement of thèse facfs and pretensioM^ in a gênerai w^y, makes it quite gvident, that the questions^ law, whiçh arise on a their examination are in reality few in number. On thë one hand, there is the claim for extradition, in support of jyhich the municipal law is invoked, on the ground that it recognizea the act as" ôhe'^É robbery. On the other, there is the pretension of the prisoners, who say, we are not amenable to municipal la^iw ; because though we committed an, act which falls within the définition o£,this par-, ticular offence; we did so as belligerents, under circumstancés ^hich remove it from the puryiew of municipal law ; and that require it t» be judged by the rules of international law^and by the laws of war. That, in fact, tKe St. Albans raid wâs under- taken m obédience to the coramands aAi orders of^our Government; that the plunder of Breck w^ merelyan incident to that rai^; and that, therefore, it ceases to fall within municipal jcMkdiction. To this the applîçants say, ip the first place, that tfae magistrate who ex- amines iûîp a case of this kind has no authority whatever to try such question^ a§ those raised by the prisoners ; and they take issue with them also upon ail the- allégations of fact involved in their defeiice, and upon their application under the provision of the Treaty. , ■ ■ There is no dbubt whjUever, if the case stood èxactiy as' it is presented by th^ examination of the witnesses for the prosecutiona, that it would fall undér the provisions of miouoipal law ; for the flîcts proved by thém, bo far as thejP stand unexpifùned or uncontradlcted by other facts, présent a clefr case for extradition. But contrary to this vie^ of the-law contendedJbr on behalf of the fîpeUants, I hold that I am bound to considerwhether the prisonerp trij^ j-eally robbers ; or, as thêy c'ontend, sbldiers and eubjects of a beBij»rent, engaged in a hostile expédition against their enemyj-uiiiâ^^e au- thority and on behalf of their Govemment ; ànd whethAw jj P ^ft gat » cEarged was à mère incident to that hostile expédition.** Xj5335iough I have no right to try this case, it is my duty to investi^jite it, sO 83 - t> % •'î^' 449 ". I t " jî to ascertain whether or nô the offence committed falls within the prp- visioM of the Treaty, before I commit thèse men for extradition^ NotwithstMiding the pretenaiop^herefore, that'Ihave no authority, as committing ma^strat^tcj receiite évidence on thèse points ; and that they are questions entireljfô^ ^e considération of a jury of the country where the offisnce vras committed, I hâve admitted évi- dence not, technically speaking, for the defençe ; because there is no such thing as a trial before an examining ina^trate ; but évi- dence as a coi-oner might hâve admitt^ it, who mugt receive whàt- ever ifCpointéd ont as being calculâtes to hâve a bearing on the ehqoiry in which he is engaged. Onrthè>first pomt, therefore, wUch présents itself, namely, whether on an applic.ation for extra- diticm trader the statute in that behalf,a judge can recùve évidence tending fully to develop the facts resp^cting the offenoe charged, whether offered on the one side or the orther, I entertain n© doubt, aai I cwisîdepij^hat the affirmative is fuUy sustained by authority. ' ïlle^ae of the Gerity, decided by the Chief Justice and a full benè Coâlburi^declared, that testimony ten^g' to remove the iai^tation of cri«« from the prisoners, was for the jury alone. I dQ Bot jiew his diotum ip that light ; on the contrary, I think his ** — ^^age demonstriites, beyond the shadow of a doubt, that his awas tàe ûtlier way. What he really did hold was, that pfcere wer presented a commission to the JUidgei, they would Imve «iwed te receive it, and ^ give it it« tull e%t, while tiiev Wmitted its #ifficiencvas a justification?, TheW^ifl'-'no socn opinion tobe'drawn from the wpoHT; not^'in f%ct, could be held bv thia Htain} -- . .^ / okar th«it they aokao^edge, as regiuds thosip men, that the prodnotbn of a ocMpminion would hav^tvttifiedtheir act under DD 'A\ M': - '  '"i '^^ •»; ■<, .■ ' & . 'Il i' 460 V / the law of nations, and that thereby they would hâve been deprired of ail jurisdictipn over tiiem. The argument of Mr. James, which waa concurred in by the Chief Justice was, that the fact that persons acted on behalf of one of tiie belligerents, was recognized by the . la^ of nations as &justificati(m, and the possession of a commis- sion is indicated as a circumstance in the présence of which they could never order the prisoners to be extradited. They were finaily discharged on another point, though held liable to be com- • ' mitted upon this one ; but that did not affect the position lÛl the J r. \4 '■"*.■ ss y 452 rV> m ë ' 4 £^ against tbe municipal law of the other belligerent ? Before dis- « cuMng this question of law, howeVer, it may be well to examine into the nature of the fiKits proved in this connection, and to see ho|r far they fikve establiiE^ed the àllegationB upon winch this part of the prisoners' case rests. There bas been a considérable amount of, évidence adduced in this cause bearing upon the position of the- prisoners as Confeder- ates, and in support of théir assertiçns that tibey ^elonged to the Confederate army. ïhis évidence is both documentary and paroi, and appears to my mind oonolusive. Withoutçntering- m détail upon the objections taken to a part of ii, 1?hich appëar to tee to rest upon insuffîcient groui}ds, and not to bear in aujr respect the test even of a supeHicial examination, I hold that it is proved by that évidence, that on the 19th pctober last Bennetf H. Young was an officer of the army of the so^called Confederate Sj;ates as First Lieutenant, under comnyssion from Mr. Davis of 16th June, 1864 ; that Young-receiveid written instructions from ^. ^eddon, Secretary of War of the Confederate States, authbrizing him to organize in the territory of the enemy, for specid service, a Company of twenj^ soldiers then beyond the lines ; to prt)ceed to the Bri^ish Provinces to report toMeaa^. Thompson and Clay, Confederate agents beref, or to Mr. Clay alone; to exécute such enterprises as should be ontrusted t^ him; to violate no local law, and to obey implicitlv their instructions ; that large numbers of Confederates coUeeted at Chici^o in August last to relieve the prisoners at Camb Douglaâ'^ that the St. Albans expédition was organiaed thére bv Yoi^ng lifom amongObe Confederates, under bis instructicms from y^ Govemment, which he exÛbited tiien, and as a commissioned dBcer; that he then reported bis doings to Mr. 0. C. Clay, who gave him a mémorandum approv- ing them, aad also approving-ana authorising the expédition against St. Albans; that the otber prisoners were sdidiers in the Confed- erate armv, acting under Yôung's orders, and that in the attack on the town he and his partv aasumed, and dedared themselves to be, acting as 8ub-officM> and soîdiers, on behalf of tiie Confederate States, alle^ng tiiat they were detMieci for the purpose, to retdia- tion for similar aots c<^umt(ed by the l'ederi^ in the Sou^em Staties;— 4hese faots I,ooàd4er and hM to be estabiished beyond cohtroversy by the ovideiioe of N«Of# Vwy slig^ attempts were made b^ the Ceuasel'foff ilie apfiq^trto asiaii é&er the tetter of ai^intm^it or coiiBiMnQn, w m» uistnieti(Mas given, and I fm of 3pmiou l^t tùere waf •» pmsMÎ for their ol^tk»iis. The QxmÀéaimA jfêmJÊm tkVÊ^ néik fn thi n atate of &ietB.«.in- .' ! " ' . ' ." '^ TL T * ' ' i l 'il. '" Vf V T' ? t volves an eaouuy ii^iv ':l 458 the Treatjr,«nd as expounded by intertiational law,— and it will be in- structive m this connection to examine a case of a nature not veiy dis- similar in principlej-perii'aipSjto the one now before us, which engaged the attention of the two nations between whom was made this Treaty of Extradition. The case I refer to is that of the Caroline. That case, as properly understood, is one that settles, beyond ail dispute, the question of govemmental responsibility as distinguished from individual responsibility. The circumstances under which the United States territory was then invaded, the subséquent arreôt of McLeod, his détention for trial for the crime of murder, aûd the ustification of that détention by Judge Cowen, gave rise to^ long controversy. Judge Cowen held, that because England and the United States were at peace, the act of McLeod was incapable of being justified by any principles of international law^and thatthere- fore lie adoption and aasnmption of the act by Great Britain which lyas certainly no more than équivalent to the previous author- izatioD of the act by Great Britain, could not relieve McLeod from his responsibility to the ordmjiry municipal law of the vstate where the offence had been eomnHtted. Other Judges of the^Aner- içan courts, howéver, refused to concur in the opinion of ^ge Cowen. His observations and judgment were reviewed by Judge Talmadge, who^howed, beyond the possibility of dispute, that the views of Judge Cowen were ahogether errwieous and unsifctàined by the principles of international law ; and they bave been n^tived by every jurist of eminence in the United Sti>tes. But not only was that case examined closely by thèse great Judges; but it was observed aad commented on by great stetesmen ; and the principles contended for by Jfldge Talmadge hâve bèen adopted and recognized univer- eally ; somuch so, as,to bé taught in .the schooîs as indisputable ruleô of mtemational law. If any doubt cbuld be thrown on the jflfinciple contended for in that caseby the British Government, how. was it that none of thèse Judœes, nor even the astut© and logical miadof. Webster himself, «euld suggest om ? .Mr. Webster raised evei*y point Wffich the ingenuity of mail cpuld suggest, but Mr. Fox woilld never allow Jjim to escape fi-om this position ; " the moment tiuTact was asaume^y the Goyemrtient jou çeased to hâve any ript to examine into it at ail, upon a charge against the individual. It a taken out of tté jurisdiction of thei ftim i nal uu u p tu.^ M'asIiTOS the position taken by Mr. Fox, ànd hç demanded the immédiate iïah«Bder of McLesd, then held for tiçial for Murdér in the State of Ne* York. Ithe casé was an jàxtreme o|ie, as it jras alJeged ttiat thé kiMing of Durfee took place on Americita soif after.the Gjiro- /tn« had bean mné à. and was not a n inci^ ^t , or r a th^r wa .« n^ M- i incident, to HJe capture of the v■• -/* -•«T «f^ •*n a ' ■■■■f: >:, ^^ ,-•' - - >^. . 4' ' g \ *' ,4 -à» ,< MÈÊÈm 9 ■[ ■ 4 ^ .'■Sk" •■■V / ^ J^ \ ' 454 , . ■*■ f was placèd on his trial for committing murder. NoW, if this wery - ' vaa act "woich 'would ^ave fallen within the purview of ôrdinare * criinijial jurisprudence, surely Mr. Webster would hâve said — the açt ,;^<^hië man did is one for wbich he must be made amenable to the ordi- Wy^ary tribunals of the country, and he must be tried in thei ysual form. Sùrely if this proposition could hâve been asserted in s^ case, ^is was one in which it could plausibly hâve been suggestef. But he ^d not atteùipt anything of the kind ; for he admitted the prta^ ciple that the moment the act was established to be the act of -1li|^ Grovemment, the individual committing it ceased to be indiv^uaffjjF responsible, and thereby ceased to be amenable to the ordinary courts, and could not properly be tried before them. j&ut, contrary to the opinions of Judge Talmadge, of Mr. Webster, and of many other Judges and jurisconsults \)e ■Ând this rule cannot be evaded by selecting from an act refer- abl^ for its approval or ce/isure only to the law of nations, a portion of, or an incident in, such act; and then attempting to subject such portiop, or such incident, to trial by a muaioijÂl tiibond. ^he wb^e of the détails and incidents whi(;h, in the aggragate, constitute 'a national, or hostile act, must be taken together. It is the hostile act or opération which I must look at, and not each minute détail of that act. To permit any departure from this rôle wonld involve flie gravest rel conséquences: as iDr in neutiral territory after an unsuccessful bsMile, could be hel^ respon- ■i ■; n ../;.; ■/..-■ »/ k ■ ■ ,>^n •■ Il ■ r*^ibfefoi: eVçjgr iadividual aet committetî i^, ÎBcidenti to the fight, éitWer bèfcre ojr'after jt, and could be 4epiîu(ideèl and gureendered for îrial for Buehact to the crimmal triljvmals of ihe coôntry against which ie waa nuaking war. Iftàereforeti^ attaicfeupon^t. AlS^M'^an liostîîe attftck, ma* by parties açîëng' in beh«Jf of tbè Gqufed^rate Governttient— and expresaly orimpUedly ftirthomed by tbatOo^fem- î^ent,! must loobat ti^^ àttaok itself ftâtiie act whicfî I am to con- aidety I must look^t the numerbtts instaneeé wBch; e«««urrHj: during its, continuariee as the élément» whicb ift'the aggte^t^ opn'-_« stitiite thé act déne-by Young andJûs party— as tltô firingiof ail" the sbotB in an action taken together, oonstitute auch àptâon* And ' I can, no înore treat.thô planer of Brecï, aabeinè enively distinct and separate froni.the- (Jthéj" re« gestcB, thp,n, if the niattér Cïùnê before me, I could" regard the bufning of any pwctioiilar house jn the Shenandoab VaJley by any individua) in^the î'edral anny,;a3^ an isolatèd act of arson. ' Ai >i That acts cognizable by the law of niationa are .necçssai^l* M^ , firom KabiUty to investigation, or raûier to ponisliment,' bj*" tbê ordinory courts^ is therefore an important point, adnàtted by \Vebster himself, and sustained by the nmnejFoua authôritiefl' on this point that bave been cited from the bdr. Thiia opimàn was followed in the oase of the Boanoke. When («he «aptors Were taken up as pîratôs on that oecasion, they prodaëed A com- mission from^^ersoû ^vis as tliô aûthority un^er which they were actins^ Did the Court stop to question it ? îîo. ; the Judge stopped iÛ examination, or rather the Attoiliey-Cfeneral did so. He said--|ùs act -«ras committed by one-fiio |ttùg»a«eés the aulhob*' ity of bis Avereign as his justâfication. His case tâtoi^fore is no longer one^rhiçh can bfe proceeded wi*h as, a robh^ry foç, WMch he is amenable individuall^ to the ordinary conTta ; iiâa^the pnsonera were tiiereupon immediate^y discharged. And JUurlBnsseU, in his despatçh on the sul^ect entireîy sustains the adâon of the ; court — and holds ihttt the reaion given for the disdliajrge was att^ehalf of one of the beîligereats, afd thetefore a public act in the sensé in which that phi^ is us«ii by ik^ leamed writers just cited, the State Courts w<^d be onable to trei^ it as an offienoe against their laws — aod would rioUte weir Isws if they attempted to dp so ; jiwt ' " .M I..WftB l d be yiol a fitTiie tfip law hf myown coiintty if I took wp tha X' matter as a mattor co|, I comihit the prisoners. Eible b|7 those courts-^which I must do ^ 451 .i< are independent of each ior, there is, unforttmatel Now a governfflent that ezists for thé time being, even by xnmr- pation, is a govenunent de facto, and is entitled by the law of nations to the right to make war, and to the other privilèges of a belligerent. Whether tiie Southern Confederacy is recognized as a sovereign power or not, it has the character of a belligerent ; it has the right to raise troops and to do everytlnng in fene of war that an independent goVemment in that behalf can do. If it violâtes thé* law of nations, reprisais and retaliation may be Tisited on it. If it does anything wrong it is liable to be visited with punishment as the law of nations and laws of war direct. By Uiese laws no other appdil exists than to the sword, beyond the moral effect which the opinion of other civilized nations may be supposed to exercise upon every comïnunity. The doctrine is forci- bly laid down in one of the valuable notefi to the translation of Mr. V'attel's work at page 3pl/ " As natfons (^says tiie annotator) ier, and acknowledge no common super- no sovereign power ambng nations to uphold or enforce international law ; no tribunal jto which the oppressed can appeal as of right against the oppressor, and conse- quently, if either nation refuse to give effect to the established princ^les of international law, the only redress is bjrresorting to arms, and enforcing the performance of the natia^É|^bligation. See upon this pomt also Halleck, p. 73. 2 Azuni, p. ^^* Wheaton, pp.18,21. , , ' . '' * I ain undoubtedly boi|^d to apply thè principles of the" law of antions to the relation botween the contending parties in this war — and I hold myself so bound, not only by the proclamationjaf neutral- ' ity, hut also by th* clear principles of the laws of nations thém-\ selves. I am of opinion that the civil war now existing^between the^ Northern and Southern States, constitutes a state of per&ct'war : i^t the Government has recognised it : and that the miîies are j belligerents, a^ are entitled to ail the rights of ^'eiUgÎM'ente, and to carry offthe war, quoadike other belligerent, a8^-p^ think fit." That no neutral could adjudicate, ^between thqjjlidaigejaenté, as tp their manner of making war. And that the aiithority, expi-ess or implied, of onet^ the belligerents to do any hostile act as against the other in az^ part of tbe territories of the belligerents, takes Buch act out of aie range of municipal law, and removesany reaponsibilky to t^t law, from the individnal'committing it 1 w^ tiMrefore now léave this branch of the suMfÉik^d proceed to, aaoUier x>omt,y in which I will assume ImSKi laws of war jusiâfied^uie issue of suoh a oammisdon &oml9HPftm as the btae ~Hv ^tnmg-haa TQceîvedj'and' ^C^t^T^imi- boand to~ recogBÔBe that oomiDicinou''a8 a docun^ent which I jni^treat as légal v 11 i ' -p i:- \» 468 • / I'! . 'I j évidence in thi^caso. And this point is one upon whioh the, fippli- cants hâve dwelt, as bëing most important to the due décision of this case. It has been contendéd by the connsel, that this is not an act of war per se, but if an acf of war at ail, is only so oonstructively. I do not t^^rstand this distinction. No author with whom l am acquainted* has ever made iti and it has never, to my knowledge, been urged in a court of justice. Acts of vmr by the law of nations, are.just such acts as the belli- gerents choose to commit within the territories of each other. — Thèse acts are done upon the" responsibility of the nation, and the soldiers committing them can in no way bé held punishable for them. They may be what is termëd unlawful acts of war, and violations of the l|,w of nation^, but I, as a judge in a neutral country, cannot sît in judgment upon them. Being committed within the t^ggjtory of the belligerent, there is no violation of our law nor me. By ail autliofïi^ of i^e teffi Whatever f> belligerent invoke their unlawfulness before mational code, reciprocitv is aclmowledged by one of the obligations of belligerents, and ono lawfolness of their acts as against each other. s done by one nation to the other, witiùn belli- geirerit territory in canying on the war, must necessarily be per- mitted to the other. As a matter of fact, raids of this descrip- tion hâve been constantly permitted and justified by.and on behalf of the United States ? On what principle then can they be denied to the so-called Confederate States. However, as far as regards the violence or unlawfulness of thèse acts, as a neutral I hâve no au- thority to décide. It is for the belligerents themselyes to deal with thèse questions ; and wheré authority, either^xpress or implied, is given by one belligerent to d4 the act, it is an act of war for which alone the belligerent is responsible. Thèse doctrines do not apply, and never coidd be intended to apply, to crimes possessingno characteristic of hostility, committed by order ofa sovereign in time of peace and without just cause. There is no analogy between the cases cited by the counsel,such as the treacherous assassination of an individual by a hired murderer, and casies of the description now before me. They rest upon entirely différent grounds. The gêne- rai and^abstract nrle undoubtedly is, thaievety subject of one belli- gerent is the enemy of every subject of the other, and that one belli- gerent may lawfîilly kiU his enem^ or seize upon his property wherever he findis faim or it, except m neutral territory. Happily for the world, crf which so large a portion is ôonstantly en^ged in war, civ iliaed datio ns in modem ^mes^ h âve volnnttttjly impoia ed ;^pbn themselves |^és for their guidàncé in war, the brellcb ôf whioh exposes ihe nation which infringes them, to the oensore and / fi»- -..<^ 459 réprobation of other civilized nations, and to reprisais and retaliation by the belligerent in respect of which' the breach bas occurred. Tjiese abstract or gênerai principles, and the exception^ to them ' fluggested by the modem mies of warfare, constitiite the proposi- tions established by the authorities cited at the bar <^Évi sides. For the applicants; numerous- authorities haVe been (JMHp^ '^^^ that the pillage of private citi^ÉK^and the killing of ùPHteed one», are prohibited by thèse mocÉI'P'bsages. For the ^efeifce, the gênerai mies bave been cited vhîch recognise the abstratct right of every belligerent to kill or plunder his enemy. Jbat pillaging a hostile town — whjch necessarily involves the pillage of the citizens of thattown, is an act in ita nature hostile, and \»bich hasprobably been done in every war that bas occurred since thé world began, cannot be denied — nor that it is within the abstract ridits of a belli- gerent. It is probably equally susceptible of proof tb^ this species of 'Warfare is not alluded to. And 1 may be çersônally of opinion that the infringements of thèse ffliiôllem usages involved in this ex- pédition — and if we may crédit the public prints, not unusual on either side in this unhappy strife — are crael and barbarous and dis- graceful to the great nation between whose sections they bave oc- curred. But what is the conséquence ? Can I say that I do not consider the pillage and buriiùig of St. Albans such acts as aro approved of by the modem usages of war, and therefore, although imdoubtedly within the rigbts of war, that I will treat the prison- ers as ordinary félons, and deny them altogether a hostile charac- ter ? Such a proposition is too monstrous to suffer me to entertain it for a moment. \* A very few authorities will establish the correctness of thèse views. See Wheaton, pp. 618, 619, 686 «Kpeq., 626. 8 Philli- ffiore, 116, 116, 187. 2 Grotius, (trans.) p. 66. 2 Wildman, 8, 10, 24. Vattel, 399. . And the distinction is actually clearly laid" down in manyofthepassages cited for the applicants. For instanee-, Vattel, p. 861, beinç cited ; see p. 862, making the distinctbn. See also the distinction taken at p. 360, from the doctrine laid down at p. 369. In p. 359 the distinction is taken in the sentence^rf adjoining the one cited. ' " « As regards any violation of the law of nations, it \^ laid do\m that if persons engaged in war, but offending against its laws, are cjiptured by their enemy» they may be dealt with as «uch énemy may think proper. If taJcen within its territories, they may be hanged or shot after a military trial of the most summary description. Bïit it * must be remembered. that it is when captured within the çnemy'a l territory^ and only then, that thèse pe rBohs are liaMe to be. pùmshedTm this manner. But it is pretended that if iaclï pértnaiff are not captured ; that tf they escape fromN^e enemy and seék an i. ;fi «'fi ■-Î.4 "/^■:;. B1IIL.JI-IK.". ' -. J-lHU i , .' n 1 * 1- ( ■ i '. , <■ ^ * , ' « • ,■'■'. :':r t- •'■ - f ^i' ' 1 'J. % , . .ii^i^r;. '^:^^iihéà, .^.^ ' ' ' • 1 ' ,'*"■' < ». ■-m &-^r'' ;•'-''■■'■' / ;■// ■ ,' -,■ ■ - -*. " ' ■ . . / » ■•^^} ' i ■ 1 ■ " à •i <». ^, 18^, o.C^.^. IMAGE EVALUATION TEST TARGET (MT-3) fe ^/ /L fe5' 2fl 1.0 l.l 11.25 ^l£S lia •s tts. 12.0 122 m U ii.6 — 6" Sciences Corporation ■1>^ 1^ " ÏV '^\ r rv -"v 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7)6) S72-4903 «. ,. ..1-««I5pi* ^ s»,,. '. i.A^' -j- UA'* i^à « o ■*, &?^ fA •\ > ;.'•-»' ;,:7 . r'\\'^ / "-^xp,. I . .Jië' r, .- ..«. J,h,' "^ ,,c>îë- ,'V» 460 #, m asylum in neutral temtory, it follows ttat under-such an extradition treatjr as ours the neutral power should give them up. .Jifr. Bethune.—Cmmt they be sçrrendered ? _ Judffe Smith.— l venture to say there is nothing to that effect m the bookB— nothing that even distantly alludes to the possibility of surrender, because of the violation of the lawdTôf war. The Treaty between the two govemments provides that for the violation of the criminal law, parties shall be surrendered ; but for violation of national law, as between belligerent powers,it does notpvethat right : for it would be to déclare that because an act by the law of natir violation ot give that the law of ) a private as a viola- of any de- be unlaw- neutral is this point, of opinion »f the tnie that i<^ ia But wpuld extradition , when tiie lown to tiie se the dis- I branch hf i right to obliged to lence indi- it. Yonng, liât Young rs of those the attack etile expe- vemment. > me to be by writers T implied, authmity the efiect ad by Mr. lere is im- he service of the Confederate States. As to the direct authority received by Young, it is unnecessary.to quote books; it is a mère matter of testimony excerpt in respect of the effect of the aJIeged breach of neutnUity, which I shall hâve occasion presently to discuss. But as the authority given by Mr. Clay bas been stated to be an abflolute nullity becauàe pven hère, I may say a word respeeting it, «rpassing. I do not hold that the approbation or authority of Mr. Clay was essential to bring the acts of the prisoners at St. Albans within the im|)unity afforded them by mtemational law ■ but as iDounsel hâve laid much stress upon this point, I >rill state my views upon it. I find no rule or principle of hiw which stamps this act of Mr. Clay with absolute nullity : as between the belliger- ents. Nor do I find his position as a diplomatie agent in a neutral oountry, at ail unusual. We hâve the well known instance of Mr. Mason in England, and Mr. Siidell in France. They hâve not been reoognized as ambassadors because the independence of the South bas not bee» recognized by those govemments ; but if they hâve not those powers, they hâve rights as agents of a belugerent. The concession of this position does not admit that they hold the position of ambassadors nor that the govemment of thbse countries hâve reoognized them aa accredited envoys. But in fact Mr. Slidell and Mr. Mason hâve held correroondence with the ac- knowledged officers of the English and French govemments— they bave esercised certain powers thou^ they hâve not been reoeiVed àà ambassadors of a recogniaed power. Ead Russell ha« corresponded with Mr. Mason aa the agent of his govemment ; »nd Mr. Slidell bas had interviews with Mr. Drouyn de L'Huys in tbe^Bame quality. And we know also that Commodore Barron et>^ >r» pi s oved ia twqjpwt <^^«e'çwteiffliOTr^ successfully disputed. Counael hare citeo, a iiuinber of authonbe»^ Jo prove that a breach o f neutrality is unlawful, thftt caj^turea m "violation of neutrality are subjëcf to be declfured void,- fcud w®;^*" violation of international law ; buttheyhavé not cited àny atUio^ty hl ' 'î 468 t'i to prove that such iUegality or such violation haa any other effect than to make the ofifenders reaponsible to the neutral- In mattere of violated neutrality the neutral alone is the judge. In this case, if our Government pertnitted the passage of Young with his party through our territory, as an armed party of Southern troops, the United States Government mi^t complain to our Government of the granting of the permission, unless wé hâve granted similar privilèges to her troops, in which case she could not. But such passage, and still less a peacefîil passage, of un- armed or apparently unarmed men through our ternjbory, can afFord no grounds to the United States to appear befor'e 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 thè offenders be handed over to them ^r punishment. If that is law I am at a loss to imagine upon what pnnciple it can be heîd so. I hâve not'found such an opinion laid down in the books, and I cannot but consider that it pçoceeds from fallacious reasoning. But there are récent illustrations of this view precisely in point. The appli- cants hâve endeavored to shew that the prisoners had become British subjects, pro hoc vice, as they tenn 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 applicants, the rule couiftided for would not apply, if they acted under a commission froi# the belligerent. I hâve already adverted repeatedly to the Gerity case, but I must again refer to it in this behalf. Ch. J. Cockbum says : " I *' concur in thinking tJbat persons so acting, though not subjects of *' a belligerent state, and though they may be violating the law» of *' iheir own country * * • such persons cannot be treated as ** pirates." In îhe Chesapeake case Judge Ritchie, speaking of neutrals eogaging in hostilities, says : " They may make themselves ^* amenable to the law of their own country * * * but they " cannot be dealt vnûi by the belligerent against whom they are " acting, as pirates." And further on he states : they cannot *' loithoutany commission or authority fit»out in a neutral country a hostile expédition against a power at peace 'vrith such country," &c., &c. And he wams them that if they do so, they must take care to bave a commission. In the Gerity case the party went on board the vessel at a neutral port ; in the Roanoke case thepr did so also ; in àié Chesapeake case the prisoners were British subjects yet it was distmctly Uûd down in two of those cases that a violation of neutrality did not affect the character of belligerency in the prisoners ; and in the tUrd, so far as I kuow, the question was not attempted to be rajsed. m I am therefore constrained ko hold that the attack on St Albans was a hostile expeditioW authorised both expressedly and impliedly by the Confederate miseioned oflBcer of their ai soldiers. And therefore that as incid^nt to, that attack can under the Ashburton treaty tes ; and carried out by a com- command of a party of their in act committed in the course of, or e made the ground of extradition 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 status and > authority^as belligerenta. Before pronouncing the judgment which is îndicated by thèse remarks, I would however say a few words upon another branch of the case, which involves considérations of the highest character ; and which, though I do not allude to them as deciding this case, raust hâve their weight whenever political considérations appear to form an élément in any act for which extradition is demand- ed. It is conceded without controversy, by vriters 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 concemed ; — and that the then existing public law of both nations form an essential part of the national compact which is created b^ the passage of an extradition treaty. In 1842, when this extradition act was passed, the publia;^ law of Great Britain as well as the public làw of the United States became incorporated with the national compact. It can not be said that England or the United States nassed this act wifehôut référence to the public law of either Mjjjfry. Then, it became part of the contract. The stipulations o^^e contraçt with regard to the .définitions of the crimes covered by it, were to be carried out iri conformlty with the municipal laws of both countriies, in so far as they agreed. We hâve then the law of nations, and both the public and municipal law of Ijoth countries, combining to form the compact effected by the pasaing 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 ail nghts incident to a state of belligerency— that should be tegarded as the law goveming us, just as much as if it were actually inserted in the Treaty. But the United States deny that the so-calle.d Confedettite States are law- ful belligerents, and though virtually they treat them as such, they refuse formally so to recto me to rest to some estent on the same ground ; aAd-on principle, the extradition of a fugitive slave for taking life in defence of nis right of personal freedom, would seem to jne to be unsustainable, except by a nation recognizmg by its laws and within itself the institution of slavery. And deserters hâve been ùsually treated" as being in.the same category. Political offenders, however> form the jpaost conspicuous instances of exclusion from the opération of the extradition law. No nation of apy recognisecî position h(is been found base enough^to'surrerider, under. any circmnstances, political offenders, vrïio hâve taken refuge within her territories — or if there be instances, they are few'in number, aiid are recorded as précédents to be reprobated rather than foflowed. Ànd it is in connection with struggles like that now* going on in the United States, that the doctrine of asylum bas received its most remarkable illustrations. The famous letter of Lord Palmerston on4he subject oi the. Hungarian refugees, has been repeatedly lidverted to, and contains such an exposition of the prmdple as nùght hâve been expect^d from that statesman. « (The leamed judge hère referred to Wheaton at pp. 40, «< seq.y and 139, et seq.^ discussing at considérable length the position and relations of a nation during a civil and revolutionary war ; also the effect of changés in ihe j^ligations of treâties, where eitlier pfrty to theiù has been revolutionized.) „ ■'" >J! do n ot hold, howeyer, nor bav e I «ny right to hold, that the ^^ftty is not ilDi force, by reason oriûié uffiappy curcumstances in which the United States find themselves. But I do think that I ^ V, ^ 't ' > ^ 471 ^ am bound to scrutinizo with a grcatfer degree of caution, the cir- cumstfuices of^ny case which appear to posseaa a 'poHtical char- ' acter,-or wh»€h * scem togrpw out of the" etruggle ^hich is now proceeding. And I must be tho more scrupulous in weighing the h. pretensiona of tho prispnors as to thçir .ju8tific1^bn b^ their pos- session of a belligerent or political character^when t know, that the defence arising out of such a cliaracter, which England would re- cognize as vali5, if ««^tain^jT; would not èven be rcceived or listçnûd to in the Urated" States 'as being suflBcient in^làw, however folly substantiated. This question was discfflSised in tljë United States," during the trial of tho " Savannah" case ; and tho 'défonce of the prisoners that they were eommiasioned belligerents, was ignored by the dictum of Judgef Nelson, charging the jury, as matter oTlaw, that neitlier ho nor thoy could take that defence into considération at ail, until tho belligeren.cy or independence of the Southern Stjfttes was recognized. It behov^s us, thérefore, to bQ satisfied that the offence of robbery, aeéording to our interpretation,of the position of the Çonfederates, bas really been committed, betore I consent to order thèse prisoners to be remitted jbr a trial of the issue^ they raise in their defence, to a tribunal which would ignore that de- fence as insuflBcient in law, hoWever satisfactorily es^iblished ; and I consider tha remarks of Judge Crompton already reTerred to, as ^ being peculiâfTy appropriate to such a condition^of things. With this view of my duty, I hâve gone carefiilly and&t perha^ unnecessary lengtk into this matter. I hâte considered it 'proper to enter at greater length in^ the examination of some questions, which perhaps 'in themselv^ admit of no great doubt, but upon which in my humble judgment erroneous views hâve been enter- tained, and urged with great eamestness at the ,Bar. I hâve endeavored to guide myself, by what is recognised as law.by the ciyilized World, iastead of suffermg myself to be swayed by popular cries, or by the passions and influences which the proximity of this lamentable convulsion has stirred up among us.^ And I hâve come to the conclusion that the prisoners cannott^be extradited, beeause I hftld. that what they hâve done doe's no£ conafitute one of the bSëncçs mentioned m the Ashburton trea^, and beeause I havo copse(|uently no jurisdiotiou over them. I am of .opinion thérefore that the prisoners 'are entitled to their di^scharge. (Tl^ conclusion of the leamed Judgefs remarks, which occupiçd- three-hours and a half in the delive^, was greeted with loud cheerfrm Court, whîoh the officers wese unable^ suppress; and „"wMcWere taken up and repeated by the crowds in the lobbies and -outsi^e the buildifig.) /u =^ Sbn. M^M^Uj^l -wonlà like to know wbat my leamed. f ,rî u r;- frîends for the prq^oution of things inteijd doing upon the other .charge» ? » ' " • l*W'^.— -^-J**- 472 :i> Mr. Divlin. — I propose to proceed with every charge against the prisoners. Mon. Mr. Abbott. — When will you proceed ? The Court. — The prisoners are remanded till Saturday on the second charge, when the enquiry upon it will corne up. « Wbdnbsday, April 5th. At half-paât ten o'clock this morning, the five prisoners, Bennett H. Young, Marcus Spurr, Squire Tumer Teavis, Charles Moore Swager, and William Huntley Hut^îhinson, 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 présent on behalf of the Crown, and Mr. Devlin on behalf of the United States. The Hon. Mr. Abbott, Q. C, Mr. Laflamme, Q. C, and Mr. Kerr were présent on behalf of the prisoners. Mr. Devlin stated that since the last sitting of the Court he had been officially informed by the Hop. 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 heutrality laws, Having commù- nicated this fact to the United States Governmfent, 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 leamed Counsel would 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 govemment. Mr. Devlin said the leamed Counsel asked too much of him, as his functions ceased before this Court, and did not extend beyond the cases actually before his Honor. Mr. Carter said that as one of the Counsel for the Crown, he might be permitte(f to say something with référence to the rumors which had been circulated as to the course the Grovemment in- tended to pursue. The Govemment had adopted such means as would De most likely to bring thèse men to trial on charges of vio- lât!^ our neï^ra|ity laws ; but it was not the intention of the GovCrnment to wstitute, nor would they aid in instituting, nor would they countenancé, any further proceemngs with a view to the. ex- tradition of the^pri^Miers. So far as the Govemment is conceraed, he deedited to oisabuse the public mind of a misapprehension in relation to the course of the Govemment. It might be, and had beeS) asked^ wl^ &e~Govemment did not proceed against^ the pri- soners, in the nrst instance, for violation of the neutrality laws. No such proceedings ceuld hâve been taken. It was only when *i-;--r.:"r. s; vrvfi -1— « 473 the prisoners had gon^on their defence, and the Une of defence had been developed, that any évidence waa adduced to form the baai» of thé' judgment, that they were to be regarded as belligerenta, and in conséquence of that judgment, and then only, could the Govern- ment take any proceedings against them for breach of neutrality. Mr. Abbott waa very glad to hear so distinct a déclaration from the leamed Counsel for the Crown ; but he had yet to learn that the Govemnaent 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 enquiries of thi» nature were to be conducted, and the Govemmen^ould neither promote nor prevent such inquiries. The United«^tes Govern- ment had free access to our tribunala to demafli^a judgment - authorising extradition ; and it was the magistr^ite alone, before whom such a proceeding might be taken, who could determme 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 pledge that he would 80 refuse, would settle the matter. But he (Mr. Abbott) liid 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 Govemor would doubtless act according to his discijetion, and under the advice of his constitutional counsellors. But it was the United States who should déclare what they intepded to do, as upon them depended the initiation of proceedings. He therefore deSired the leamed Counsel for the United States, in order to allay the feehng of the public, to déclare that it was not the intention to proceed with any other charges. The Government had declared their m- tention to remove the prisoners to Upper Canada ; and the leamed counsel for the United States had withdrawn ail the charges then before his Honor ; Ihese charges origmally consisted of the case of Breck, aJready disposed of, and that of aasault with intent to mur- der. Let his leamed friend (Mr. Devlin) state that the United States abandoned their claims for extradition, and that would be Bufficient. He knew the extraordinary excitement that had been created ; not only among those petsons who were against the ex- ' tradition of the- prisoners, b^t also among those who held a différ- ent view ; by the belief that the removal of tjie prisoners to Upper Canada was only intended to bring them within the jurisdiction of Judges who were supposed to entertain a différent view of the law . from his Honor. The précautions taken to put down any violence, proved the extent of that excitement. His leamed friend was a dhMontre»! as well m làaai^^aà^ see the city the scène of tumult and perhaps of bloodshed, ail of which might be prevented by a word from him. He (Mr. A.) of 4 '--**-^^**jJfc,. 474 course made no pretension to asking for this as a right. He only suggested i^aa a proper step to tranquilli8Q,the public mind. Mr. Devlin said it was humiliating to the last degree to be obliged to listen to such statements. Was it possible that the causes of law and order hâve no friends, in this city ; that we are ruled by a mob ; that justice had fled altogether from amongst us ; that the Government of Canada must succumb to, and in ail its future •dealinga with the country be influenced and guided by, the rowdy élément. Mr. Abbott admitted that the Government vaa right in bringing thèse men to trial for a violation of Ganadian law ; but the next moment he told them that this right could only be exercised upon certain conditions, dictated by the prisoners, otherwise we might find ourselves plunged into a state of tumult, riot, and blood- sheji.^ But he disregarded thèse threats, and believed that the <06vemment would be supported in the exercise of ita legitimate authority. We were gravely told, that the citizens pî Montréal were excited to an alarming degree, because the Government had dared to hold the St. Alban's raiders to account for having violated the sanctity of the asylum, afforded to them in Canada ; and that it required the positive assurance actually demanded from the Counsel for the United 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 refusai to do so, should entail ail the disastrous conséquences indicated in the speech of his leamed friend, he (Mr. Devlin) would say far better and more honorable would it be to encounter thèse disorders, than to incur the odium of entering into dishonoring bargains with persons accused of crime, for the privilège of being allowed to put them upon a trial, which they knew well would terminate like mose through which they hâve heretofore so successfully passed. In so far as the United States were concemed, the libération of the prisoners was not feared by hia clients. They halfr met and conquered more troublesome and more dcsperate 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 préserve our neutrality, or whe^er while pre- tending fiiendship, we were not àcting the part of war's disguised and treacherous enemies. Tins was the true cause of tiie interest taken in the extradition of the offenders by the United States. Mr. Carter sud that he did not know what further statement his ^teamed fiiend (Mr, Abbott) wu ld^ttalrrafter fee Btatement^< leamed Counsel for the United States. It would oleariy be impo6<- t&tf^SjfefJJj'gWÉiMiaViiiit.v 475 siblé to entertain an application in Upper Canada after the Govern- ment had instituted proceedings based on thèse acts, as acts of "hostility, and not aa common robberies. The Government was the Government of Upper Canada as well as of Lower Canada, and would not be likely to disclaim in Ùpper Canada what it had autho- rized in Lowet Canada. He thought it unfair towards the leamed Counsel for the United States to ask from him a pledge after the déclaration he had made. Mr. Ahbott said he had asked no pledge, he had simply suggestèd a déclaration of intention, which the newspapers of the day stated, " by authority," that the leamed Covmsel was empowered to tnake. He had suggestèd this, and instead of it,he had Igot a speech from Mr. Devlin, in which mj such déclaration was carefully avoided. Besides, this speech was fiUed with assumptions as tonhe position of the prisoners and their friends, which were simply ridiculous. No one objected to the prisoners being tried for a breach of neutra- lity. He (Mr. A.) had always been of opinion that they ought to be ; and although the investigation had proved that there waa little if any ground for the charge, still no one objeeted. But what had aroused this whole community, was the belief that the removal of the prisoners was only a (Jishonorable artifice, by means of which, the United States Government were to be enabled to évade the solemn judgment, rendered in this cause in favor of the prisoners. That impression could be destroyed by a word from his leamed friend, uttered openly hère in the face of the community: and he had listened carefully to the outburst of his friend, only to find with regret that he carefully avoided uttering' that word. He again begged of him to consider whether he might not yet say it. Mr. Devlin reiterated the instructions he had received to with- draw ail the charges before His Uonor. The proceedings for vi<> lation of the neutrality laws had been instituted, before he addressed the Hon. Attorney-General on the subject. He contended that his leamed friend (Mr. Abbott), as one of the legislators of the coun- try, owed it to the laws of his country, which he had helped to make, that he should see that they were carried eut, and to make every eflFort to that effect. Should we by our sympathy for the South, or a désire to see the North crushed, say to them, that no matter what oflTences werfl committed agwnst them, we would not yield up the oflFenders ; and this too for men who would be rejoiced to see Canadians shedding each other's blood ? He would inform Mr. Abbott that there were many in this city whose sympathies were not so much with the South as to cause them to permit the laws to be trampled upon. " limy Judge Smith waà disposed to gire 1he dedaratiottTrftire^wm^ for the United States its widest Bigmficatio|^Hand said that he ^Sâ-i.i.\-..i-\i.-és'i-±-,^'ûJi^kii'k^^^^^^ APPENDIX. At the Court at Osbornte House, Isle of Wight, the 4th day.of February, 1865. The Qubbn's Mpst Excellent Majesty. Lord Président— Earl of Clarendon, Duke of Somerset, Mr. Massey. Whereas, by an Act of Parliàment passed in the Session of Par- Uament held b tho 6th and 7th years. of Her >Iajea^ s Re^, intituled: «An Act for giving effect to a Treaty between Her « Maiesty and the United States of America for the appréhension « of certam offenders," it wâs by the 6th section enacted that if bv any law or ordinance made by the Local Législature of any Bntish Colony or Possession abroad, provision should be made for cariy- ina into complète effect within such Colony or Possession, the obiects of the said recited Act by the substitution of some ottier enaotment m heu thereof, then it should be Compétent to Her Ma- iesty, with the advice of Her Privy Council, (rf to Her Majesty in ComicU it should seem meet, but not otherwise,) to suspend the opération vithin any such Colony or Possession of the said recited A^t, so long as such substituted enactment should cohtmue m force there and no longer. " ., , And whereaa, by an Act passed by the Lerislative Council and Assembly of Canada, in the 12th year of the Beignof Her présent Majesty, mtituled: «An Act for ^^S ^«t*^^5n^!S^f!^^ Province to a Treaty between Her Majesty and the Umted States of America, for the appréhension and surrenderofcert^n offenders, Cwhich Act was aflerwards incorporated m aad contmued by the 89th chapter of the Consolidated Statutes of Canada, under and by virtue of another Act of the said Législative Council «id AssembW, passed m the 22nd year of Her Miyesty's gpign, mtitded : « An Xctrespecting the Consolidated Sttttate8Ol% r- X \ :'i* y> 1 / ■ ' ' ^ ■>i 1 / . . . • • ' • / .' ■ \ ..- • • ! ' ' ./ - ■Ji- : ' ' •" ^ / -i b '..é y ^ ' ' _;...:.: .'Ji n\ôf • . . '^ / * ri .«*/ z' .3 \^ -/ ''-^^ /t. ''^ - « L<4i-' i!V