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 ST. ALBANS RAID. 
 
 SPEECH OF 
 
 DEVLINj Esquire. 
 
 Counsel for the United States, in support of their demand for the 
 Extiadition of 
 
 BENNETT H. YOUNG, et al. 
 
 Charged with Hn* robbery upon the \Wi October last, of 
 
 In the 'Fown of St. Alhansy in the State of Vermont, one of 
 the United States of America. 
 
 Reported by Mr. SAMUEL J. WATSON. 
 
 MONTREAL : 
 
 Pristed by Owj-kr Jt Stkvemson, 70 St. Francois Xavier Street. 
 
ALBANS RAID. 
 
 ST. 
 
 spi:ech of 
 
 B. DEVLIN) Esquire, 
 
 Counsel for the United States, in support of their demand for • the 
 Extradition of 
 
 BENNETT H. YOUNG, et al. 
 
 Charged with the robbery upon the\9th October last, of 
 
 In the Town of St. Albans, in the State of Vermont, one of 
 the United States of America. 
 
 Exported by Mr. SAMUEL J. WATSON. 
 
 MONTREAL : 
 
 Prjktbd by Owlkr h Stivensok, 70 St. FR*Ncofg Xavier Street. 
 

 

 
 St. ALBANS EAID. 
 
 T1i£ folloioing Speech, reported hy Mr. S. J.Watson, 
 loas delivered upon the 2Ut instant, hy B. 
 DEVLIN, Esq., Counsel for the United States, 
 in the Court House in Montreal, in suppcrrt 
 of their demand for the Extradition of the St. 
 Albans Raiders. 
 
 May it please your Honor. 
 
 It IS, I have no doubt, as gratifying to you, as it certainly is to 
 the Counsel who here represent the Governments of Canada and 
 the United States, to find that the time and attention bestowed 
 upon this Investigation have at last triumphed over the nu- 
 merous and unexpected obstacles opposed to its termination, 
 and brought us to that stage of the enquiry which enables us 
 to address your Honor upon the merits of the application for 
 the extradition of the prisoners. The case, as I view it, is one 
 of extreme simplicity ; and although it has attained to an 
 unusual magnitude, and attracted public attention perhaps to a 
 greater degree than any demand ever before made under the 
 Treaty, I have certainly so far been unable to discover that 
 it presents any feature calculated to embarrass the Court in 
 dealing with it, or that even tends to withdraw it from the 
 category of crimes enumerated in the Treaty under which we 
 are now proceeding. True it is that the prisoners’ Counsel 
 have labored hard to surround the act of their clients with 
 grave international difiiculties, and to impress upon it the cha- 
 racter of an act of war, but I flatter myself, that submitted as 
 it will be to the test of sound sense and judicial scrutiny, the 
 crime of robbery, of which the prisoners are accused, will still 
 appear, despite all the false coloring under which it has been 
 so ingeniously presented to your Honor’s judgment. And here 
 I may remark, that to me it doth seem as if my learned friends 
 
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 fancied themselves endowed with some extraordinary magical 
 influence, for certainly without their supposed possession of some 
 such rare and wonder-working power, it would be difficult in- 
 deed to believe that they would have attempted to elevate a 
 darin<- act of robbery to the dignity of a manly deed of 
 warfare, or claimed for its guilty perpetrators the con- 
 sideration due to the honest warrior who uses his arms for the le- 
 gitimate objects of war, and not as the prisoners did at St. Albans, 
 for the ignoble and savage purpose of robbing and murdering 
 unarmed and defenceless citizens. I have said, your Honor, 
 that tliis enquiry, notwithstanding the simplicity of the question 
 involved in it,has attained an extraordinary importance,so much 
 so indeed, thanks to the fertile genius of my learned 
 friends, that it has become a cause ceUbre. But let me ask what 
 is it that has thus distinguished the St. Albans Raid and given 
 to it a world wide notoriety! I answer unhesitatingly, its 
 signal atrocity, the fraud and cunning by means of which it 
 was achieved, aided, no doubt, by the extraordinary efforts 
 suDseqiiently made by the friends and sympathisers of the 
 prisoners to strip their wicked deed of its criminal responsibility, 
 and to make of them, its guilty perpetrators, heroes if not mar- 
 tyrs. Be this, however, as it may, I entertain the hope in 
 which I trust I will not be disappointed, that senseless clamor 
 will net here be permitted to drown the voice of public justice. 
 That your Honor, ever mindful of the high and solemn trust 
 reposed in you as one of the chosen administrators of the laws 
 of our country, will not suffer your attention to be diverted 
 from the consideration of the justice of our demand by the 
 inflammatory speeches addressed by the learned Counsel osten- 
 sibly to you, but in reality to the passions, prejudices, and 
 sympathies of the auditory which has filled this spacious 
 Court-room from day to day. And, now, let me ask what does 
 the duty imposed upon you require 1 It demands neither more 
 nor less than that you should give effect to the provisions of a 
 Treaty without which Canada would soon become a place of re- 
 fuge for criminals of every grade, an asylum for malefactors of 
 every dye. For be it remembered that it was with the object of 
 
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 protecting the subjects of Her Majesty and the citizens of the 
 United States from the direful consequences that inevitably fol- 
 lowed where great criminals were allowed to escape the punish- 
 ment due to their crimes, by fleeing from one foreign territory 
 into another, that the Governments of England and the United 
 States entered into the solemn Treaty which now gives your 
 Honor jurisdiction to investigate the charge preferred against 
 the prisoners. This treaty, as your Honor is aware, was assent- 
 ed to at Washington on the ninth of August 1842, and ratified 
 in the month of October following. 1 refer to its stipulations^ 
 applicable to this case, with the view of shewing more clearly 
 the obligations it imposes upon us. It is to be found in the 
 Consolidated Statutes of Canada, Cap. 89, p. 943, and com- 
 mences thus “Whereas, by the 10th article of a Treaty be- 
 tween Her Majesty and the United States of America, ratified, 
 &c., it was agreed that Her Majesty and the said United States 
 should upon mutual requisitions by them or their Ministers, 
 Officers or Authorities respectively made, deliver up to justice 
 all persons who, being charged with the crime of Murder, or 
 Assault with intent to commit Murder, or Piracy, or Arson, 
 or Robbery, or Forgery, or the utterance of Forged Paper with- 
 in the jurisdiction of either of the high contracting parties, 
 should seek an asylum, or be found within the territories of the 
 other.’’ Here we find that there can be no mistaking the class of 
 offenders marked out for extradition, which, b*e it remembered, 
 the same article of the Treaty commands shall be granted, “ up- 
 on such evidence of criminality as according to the laws of the 
 place where the fugitive or person bo charged should be found, 
 would justify his apprehension and committal for trial if the 
 crime or offense had been there committed, and also provided 
 that the evidence of criminality should be heard and consid- 
 ered by the Judge or Magistrate issuing the warrant, when, if 
 deemed sufficient to sustain the charge, it became the duty of 
 the Justice to certify the same to the proper executive author- 
 ity, in order that a warrant of extradition might issue.” This, 
 your Honor, is the only test to which the guilt of any person 
 demanded under the treaty cun be subjected until he is made 
 
to answer for his crime before the tribunals ‘he country 
 against the majesty of whose laws he has offended. Who will 
 say that this is not a wise measure of protection, if not of preven- 
 tion, against the commission in our midst of all or any of 
 the foul crimes indicated in the Extradition Treaty ? Is t ere 
 a law abiding citizen in Canada who wishes for its abrogation . 
 I believe there is not: and yet, strange as it may appear, this 
 investigation has revealed the startling fact that there are at 
 this moment very many among us who erroneously imagine that 
 this national convention, so necessary for the repression of crime, 
 and so needful for the protection of society dependent for its 
 existence upon the good faith observed in its execution by both 
 the contracting parties, may upon a special occasion be treated 
 with indifference, or, in order to secure the immunity from 
 punishment of some highly favored criminal, be ignored in 
 such case altogether. 
 
 In refutation of this mistaken notion of our duties and obli- 
 gations under the Treaty, I will now read from the published 
 opinions of eminent Jurists and distinguished statesmen, a few 
 extracts, to show their appreciation of the benefits derivable 
 from its existence, and the rule to be observed whenever its 
 execution becomes the subject of demand by either of the high 
 
 contracting parties. 
 
 Upon this point I refer firstly to a debate which took place 
 in the House of Lords, in the month of February, 184-2, when 
 this Treaty was the subject of discussion. Upon that occasion 
 Lord Brougham said : — ** He thought the interests of justice 
 required, and the rights of good neighborhood required, that 
 in the countries bordering upon one another, as the United Stales 
 and Canada, and even that in England and in the European 
 countries of France, Holland, and Belgium, there ought to be 
 laws on both sides giving power, under due regulations and 
 safeguards to each Government, to secure persons who had 
 committed offenses in the territory of one, and taken refuge in 
 the territory of the other. He could hardly imagine how 
 nations could maintain the relationship which ought to exist 
 

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 between one civilized country and another without some such 
 power.” 
 
 “ Lord Campbell, for his own part, should like to see some 
 general law enacted and held binding on all states, that each 
 should surrender to the demand of the other all persons 
 charged with serious offences, except political ; this, however, 
 he feared was a rule or law which it would be difficult to get 
 all nations to concur in.” 
 
 Upon the same subject, Sir Robert Peel, replying to Lord 
 Palmerston^s speech condemning the other provisions of the 
 Treaty, observes : — “ The next point to which I shall refer is the 
 article of the late Treaty providing for the mutual surrender 
 of persons charged with offences. The noble Lord admits that 
 the general object aimed at by the article is a wise one, that 
 when the countries have a common boundary, the escape of 
 criminals by stepping over that boundary, is prejudicial to the 
 cause of good order, and injurious to the interests of both 
 countries. The reciprocal delivery of heinous criminals is 
 clearly an object of importance to civilized Governments.” 
 Hansard^ s Farliamentary Debates, 3rd series, vol. 67, p, 1223. 
 
 President Tyler, in his Message communicating the Treaty 
 to Congress, observes : — ‘‘ The surrender to justice of persons, 
 who having committed high crimes, seek an asylum in the 
 territories of a neighbouring nation, would seem to be an act 
 due to the cause of general justice, and properly belonging to 
 the present state of civilization and intercourse. The British 
 Provinces of North America are separated from the States of 
 the Union by a line of several thousand miles, and along por- 
 tions of this line the amount of population on either side is 
 quite considerable, while the passage of the boundary is always 
 easy, offenders against the law on the one side transfer them- 
 selves to the other. Sometimes with great difficulty they are 
 brought to justice, but very often they wholly escape. A con- 
 sciousness of immunity from the power of avoiding justice in 
 this way instigates the unprincipled and reckless to the com- 
 mission of offences, and the peace and good neighbourhood of 
 
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 the borders are consequently often disturbed.’^ (Message of 
 President of U. S. to House of Congress, August, 1842.) 
 
 Mr. WthsteTy the American negotiator of the Treaty, in hig 
 celebrated speech, delivered, I believe, in 1846, in defence of 
 its provisions, referring to the tenth article under which we are 
 now proceeding, spoke of it in the following terms: — I under- 
 take to sav that the article lor the extradition of offenders con- 
 tained in the Treaty of 1842, if there was nothing else in the 
 Treaty of any importance, has of ilself been of more value to 
 this country, and is of more value to the progress of civilization, 
 the cause of humanity, and the good understanding between 
 nations, than can readily be computed. What was the state 
 and condition of the country on the borders and frontiers, at 
 the time of this Treaty? Why, it was the time when the 
 “ Patriot Societies,’’ or Hunters Lodges^’ were in full opera- 
 tion, when companies were formed and officers appointed by 
 secret associations to carry on the war in Canada, and as I 
 have already said, the disturbances were so frequent and so 
 threatening, that the United States Government despatched 
 General Scott to the frontier to make a draft on New York for 
 militia, in order to preserve the peace of the border ? Nothing 
 but this agreement between the two Governments that, if 
 those Patriots” and ‘‘ Barn burners” went from one side to 
 the other to destroy their neighbors’ property, trying all the 
 time to bring on a war, (for that was their object,) they should 
 be delivered up to be punished. They were heard of no more.” 
 Worksy vol. 5, p. 139.) 
 
 Vattely speaking of Treaties, says : « The faith of Treaties— 
 that firm and sincere resolution — that invariable constancy in 
 fulfilling 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 deficient in their duty to them- 
 selves. infamy must ever be the portion of him who vio- 
 lates his faith. 
 
 He who violates his Treaties, violates at the same time the 
 law of nations: for he disregards the faith of treaties— that 
 
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 faith which the law of nations declares sacred : and, so far as 
 depends on him, he renders it vain and ineffectual. Doubly 
 guilty, he does an injury to his ally, he does an injury to all 
 nations, and inflicts a wound on the great society of man- 
 kind.” 
 
 On the observance and execution of Treaties, “ said a re- 
 spectable Sovereign ” depends all the security which Princes 
 and States have with respect to each other; and no depend- 
 ence could henceforward be placed in future conventions, if the 
 existing ones were not to be observed. The man who violates 
 and tramples under foot Treaty engagements is a public ene- 
 my, who saps the foundation of the peace and common safety 
 of nations.— B. 2, Cap. 25, p. 229.) 
 
 Upon the same subject. Chief Justice Jay, in his day a most 
 eminent jurist, and, if I mistake not, the negociator of the 
 Treaty known as the “ Jay Treaty,” in delivering his charge 
 to the Grand Jury in the celebrated case of Henfield, tried 
 in the City of Richmond, on the 22nd of May, in the 
 year 1793, for a violation of the neutrality laws of the Unit- 
 ed States, observed : — “ Treaties between independent nations 
 are contracts or bargains which derive all their force and 
 obligations from mutual consent and agreement : and conse- 
 quently, when once fairly made and properly concluded cannot 
 be altered or annulled by one of the parties without the con- 
 sent and concurrence of the other. Wide is the difference be- 
 tween Treaties and Statutes — we may negotiate and make 
 contracts with other nations, but we can neither legislate for 
 them nor they for us to vacate or modify Treaties at discretion. 
 Treaties, therefore, necessarily become the supreme law of the 
 land. The peace, prosperity and reputation of the United 
 States will always greatly depend on their fidelity to their 
 engagements, and every virtuous citizen (for every citizen is a 
 I arty to them) will concur in observing and executing them 
 with honor and good faith, and that whether they be made 
 wjth nations respectable and important, or with nations weak 
 and inconsiderable, our obligation to keep our faith results from 
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of the state or people to whom neither impunity nor the right 
 of retaliation can sanctify perfidy ; for although perfidy may 
 deserve chastisement, yet it can never merit imitation.” 
 
 Upon this branch of the case I will not dwell longer, as I 
 believe that your Honor is as fully sensible of the importance 
 of our executing in good faith our Treaty engagements, as have 
 been the distinguished men whose opinions upon this subject 
 I have briefly laid before you. But while it is our duty to give 
 due effect to the Treaty when its execution is demanded, we 
 must guard against its being made to become in our hands an 
 instrument of oppression or of injustice. I will therefore with 
 the view of shewing the justness of the present application, ad- 
 dress myself to the consideration of the facts upon which is 
 founded in this instance the demand of the United States for 
 the extradition of the prisoners; premising (hat before we can 
 invoke the operation of the Treaty, we must have clearly, un- 
 mistakeably, and in accordance with the rules and requirements 
 of the law as it exists, here established three facts: — 
 
 First, that the particular offence which has caused the de- 
 mand for extradition, was committed at the time and place al- 
 leged by us. 
 
 Sesondly^ that it is one of the offences mentioned and des- 
 cribed in the Treaty. 
 
 'Thirdly^ and lastly, tliat the persons whose extradition is by 
 reason thereof demanded, participated in the commission of the 
 guilty deed. 
 
 This, your Honor, as I understand the object of our investiga- 
 tion, is the most important branch of our enquiry, and therefore 
 the first to merit our attention. Impressed with this con- 
 viction of our duties and* responsibilities, I will now proceed to 
 discuss the evidence we have adduced in support of these three 
 propositions. 
 
 What then are the facts proved, if any ? I answer, that it is 
 proved beyond the possibility of doubt that long previous to the 
 19th day of October last, the day when the crime in question 
 was committed, a plan was organised in our Province of Can- 
 
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 ada, by a party of men calling themselves Southern Refugees, 
 who at the time were enjoying the hospitalities of our citizens 
 and the protection of our laws, which plan had for its object 
 the robbery of our neighbours in the peaceful town of St. Albans. 
 
 It is proved that in pursuance of this illegal and treacherous 
 organisation, and two or three days preceding the said 19th day 
 of October, these so called refugees, to the number of about 20, 
 secretly left this Province, and stealthily introduced themselves 
 into the town of St Albans. It is proved that after their arri- 
 val there, and so soon as these evil disposed visitors had mark- 
 ed out the persons whom they intended should become the 
 victims of their cowardly and felonious operations, they cast 
 aside the disguise assumed for the occasion, and in the after- 
 noon of the 19th day of October last, suddenly emerged from 
 their hiding places, and appeared among the unsuspecting citi- 
 zens of St. Albans armed with the deadliest kind of weapons* 
 each man of the party threatening instant death to all or any of 
 the panic stricken citizens who dared to oppose him in his 
 work of plunder. 
 
 It is proved, that having been thus armed, some of the gang 
 entered the St. Albans Bank, and having taken violent pos- 
 session, closed its doors; that immediately after this first act 
 in the tragedy so treacherously performed, Mr. Samuel Breck, 
 unconscious of the danger that awaited him, knocked for ad- 
 mission, and was permitted to enter. It is proved that no 
 sooner had he done so, than the door of the bank was again 
 closed ; whereupon he was violently seized by one of the rob- 
 bers, who presented a revolver close to his head, threatening 
 at the same moment (I use the words of the witness) to blow 
 his brains out if he (Breck) did not then deliver to him a sum 
 of money which he had brought with him to the bank for the 
 purpose of redeeming his Promissory Note, unfortunately for 
 him, due on that eventful day. It is proved, that Breck, seeing 
 that resistance upon his part would but lead to his being shot 
 dead upon the spot, yielded to the threat of his murderous as- 
 sailant, and allowed him to take his money, amounting to about 
 
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 $300.00, and which, as I have already stated, he carried with 
 him to the bank for the purpose of paying his note. 
 
 It is proved, that during the continuance of this cowardly 
 operation, (politely designated by my learned friends an act of 
 war), others of the same gang were keeping watch on the out- 
 side of the bank, with the view of guarding their lightrfing- 
 ered friends in the inside from being suddenly surprised, or 
 even rudely interfered with in their work of plunder. It is 
 also proved, that others of the same party were at the same 
 moment engaged in the highly honourable and of course “ war- 
 like act ” of stealing horses, with which to enable the honest 
 warriors, one and all, to seek safety in flight so soon as the work 
 of robbery was completed. It is proved, that after their thirst 
 for plunder was satisfied, these valiant soldiers mounted the 
 stolen horses, and with their ill gotten booty fled to Canada, 
 which they had left a few hours before ; but mark, not before 
 they had imbrued their hands in the blood of the unfortunate 
 and unoffending man, Morrison, whom they then and there, 
 without the shadov/ of a cause or provocation on his part, brut- 
 ally murdered. But to this cruel deed I must not make further 
 reference, as it is not at this moment the subject of investiga- 
 tion. 
 
 It is also established, that so soon as the report of these infa- 
 mous outrages upon the lives and liberties, the honour and 
 property of our neighbours, had reached the ears of the Govern- 
 ment and people of this Province, they elicited from one and all 
 a general outburst of earnest and well merited indignation^ 
 heightened by a knowledge of the fact that the murderers and 
 robbers had sought a place of refuge in Canada, which they 
 had evidently made the base of their nefarious operations. 
 
 It is well known that the Government of this country, ani- 
 mated by a lofty sense of justice, and moved as well, by a desire 
 to mark their abhorrence of the crimes committed at St. Albans, 
 as to maintain our friendly relations with the United States, 
 ordered the immediate employment of every means at their 
 disposal necessary for the apprehension of the offenders ; the 
 result of which was tlie arrest in this province of thirteeeu of 
 
the gang, all of whom unfortunately were subsequently allow- 
 ed to escape ; how or why this was permitted it is not neces- 
 sary I should now stop to enquire, particularly as the circum- 
 stances under which the prisoners eluded justice, are at this 
 moment the subject of a special Governmental investigation. 
 
 What has taken place subsequently is personally known to 
 your Honor. It was upon your warrrant that five of the pris- 
 oners who had escaped were re-arrested ; they are the persons 
 now under examination. So far, your Honor will not fail to 
 perceive that we have proved our two first propositions, namely, 
 that Samuel Breck was robbed, and at the Town of St. Albans, 
 in the State of Vermont, one of the United States of America, 
 and within the jurisdiction of the United States, and also that 
 this is one of the crimes mentioned and described in the Treaty. 
 
 It is therefore only necessary that we should advance one step 
 further, and show that we have proved our third and last pro- 
 position, that is, that the crime was committed by the prisoners. 
 And this, 1 think, we have abundantly established by our 
 having identified two of them, Spurr and Teavis, as the pri- 
 soners who personally robbed Breck, and the other prisoners as 
 having aided, assisted, and concerted with them lor that pur- 
 pose. Upon this point I refer to 1 Wharton, American Criminal 
 Law, page 12 1, wherein the law upon this subject is stated in 
 these words : “ It is not necessary that the party should be 
 actually present an eye or ear witness of the transaction ; he is 
 in construction of law present, aiding and abetting, if with the 
 intention of giving assistance he be near enough to afibrd it, 
 should the occasion require. Thus if he be outside the house 
 watching to prevent surprise or the like, whilst his companions 
 are in the house committing the felony, such constructive pre- 
 sence is suflicient ; one who keeps guard while others act thus 
 assisting them, is in the eyes of the law present and responsible 
 as if actually present. In case of stealing in a shop, if several 
 are acting in concert, some in the shop and some out, and the 
 property is stolen by one of those in the shop, those who are on 
 the ouUide are equally guilty as principals in the offence in 
 stealing in a shop.'’ 
 
14 
 
 As to what violence is sufficient to constitute robbery, Arch- 
 bold in Vol. 3, page 418, says : — The ordinary mode, formerly 
 of presenting a pistol is sufficient, so, if the robber assault the 
 party in any other way under such circumstances of terror, as 
 to cause him to deliver up his money or other property, or if 
 there be a struggle for the property before it is taken is suffi- 
 cient.^’ 
 
 If further testimony should be required, it would only be 
 necessary to refer to the voluntary statements of the prisoners, 
 in which they admit their commission of the crime charged 
 against them, but, say they, we should stand excused. Why ? 
 Because we informed Breck at the time we robbed him, that we 
 did so in the name of the Confederacy. Truly a very consol- 
 ing intimation. 
 
 Such, your Honor, are the facts ; and such, also, is the 
 law upon which we rest this branch of our case. The next 
 consideration that presents itself is : What is the duty of the 
 Judge under these circumstances? Would your Honor, if this 
 crime had been perpetrated in this Province, and within the 
 jurisdiction of this Court, by any of our citizens, with such 
 evidence of its commission as we have laid before you in sup- 
 port of the present charge, hesitate for a moment in committing 
 them for trial ? I feel confident you would not, and therefore I 
 venture to say, that if the justice which under similar circum- 
 stances we would mete out to ourselves is not denied to the 
 United States, and I hope it will not, your Honor cannot 
 refuse to commit the prisoners now before you, to await the* 
 further action of the Government, upon the demand for their 
 extradition. In support of this view of the case, I will now 
 cite a few authorities, which, I believe, are worthy of vour 
 Honor’s attention. 
 
 THE DUTY OF THE JUDGE. 
 
 S,r Cornwall Lewis puts it thus clearly and explicitly : In 
 order to render a system of extradition effectual, the amount of 
 proof, and the formalities required should be as small as is consis- 
 tent with the prevention of abuse. The essence of the system 
 
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15 
 
 is, that confidence is reposed in the foreign Government and in 
 its administration of criminal law. The assurance of that Go- 
 vernment ought to be the chief guarantee against abuse. If, 
 therefore, it claims any fugitive, through the accredited diplo- 
 matic channels, and gives a reasonable proof that there has 
 been a proper investigation by the officers of police and the 
 functionaries conducting the preliminary stages of Judicature, 
 and that this investigation had led to the conclusion that the 
 person in question is guilty of the offenee charged against him, 
 it is desirable that the extradition should take place, upon 
 proof of identity of the party, and without any full investiga- 
 tion, such as a Magistrate would make for the commitment of 
 a prisoner in this country. (Lewis on foreign Jurisdiction, 
 page 52.) And again at page 53, he says;— “ The recognition 
 of the criminal law of a foreign State, and the confidence in 
 its regular and just administration which is implied in a system 
 of extradition thus carried iuto effect, is paralleled by the es- 
 tablished practice of this and other countries with respect to 
 the civil law.” 
 
 In fact the rule thus clearly stated has been followed in 
 practice whenever questions under the Treaty arose. 
 
 In the Anderson case. Chief Justice Draper, with reference 
 to the case of a party accused of murder, seeking to justify it, 
 observed : — If there is a question of fact to be tried, I appre- 
 hend he must be surrendered, as such a question can only be 
 tried in the country where the fact arose. (U. C. C. P. R. 
 Nos. I and 2, Vol. II, page 60.) 
 
 In the Chesapeake case the same question was incidentally 
 disposed of. The Counsel for the prisoners was proceeding to 
 comment on the evidence of authority from the Confederate 
 Government, when Mr. Justice Ritchie observed ; ‘‘assuming, 
 as you must do, at this stage of your argument, the correctnera 
 of the proceedings against the prisoners, and the Magistrate s 
 Jurisdiction of the offence, do not these questions fall within 
 the province of the Superior Court on the trial of the prisoners ? 
 Is it not the Magistrate’s duty now merely to see if a prelimin- 
 ary case js made out ? I think we must act in this case just as 
 
16 
 
 if it was an offence committed here. The question is, would I 
 on the evidence commit for trial in this country ? If so, must I 
 not commit the parties for extradition 
 
 To this the prisoner's Counsel replied : — In Anderson^s case 
 a prima fade case was made out, but the prisoner was dis- 
 charged, and so in U. S. vs- Palmer, ^ Curtis, page 314, Parker 
 is found in command of the Retribution, and Braine and Parr 
 acting under him, (Ritchie, J.) I think these questions are 
 proper for a Jury, and not for the Magistrate. His duty is 
 simply to deal with this case as a Magistrate would deal 
 with an offence to be tried in this country. (Chesapeake case. 
 Report, page 35.) The case of Metzger reported in the 5th 
 vol. New Legal Observer, maintains the same doctrine. The 
 Magistrate must commit when there is just ground for suspi- 
 cion. 
 
 I will now, said Mr. Devlin, call your Honor’s attention to 
 the case of Joseph Fisher to be found in (Stuart^s Repts., p. 
 245,) decided in our own courts. Fisher was accused of having 
 stolen $638 in the state of Vermont, one of the United States 
 of America. Immediately after the robbery he fled to Canada, 
 hoping, like the prisoners now before the court, to find a safe 
 asylum here. Fisher was however, not permitted to en- 
 joy his ill gotten booty in peace. An application was made for 
 his extradition, although, be it remembered, there was at the 
 time no Treaty as there is now for the surrender of fugitives 
 from justice, in existence. The application was founded upon 
 what is called the comity of nations,” and was heard before 
 Chief Justice Reid. That eminent Judge, in disposing of the 
 question, said : — << This right of surrender is founded on the prin- 
 ciple, that he who has caused aninjnry,is bound to repair it, and 
 he who has infringed the laws of any country is liable to the 
 punishment inflicted by those laws ; if we screen him from that 
 punishment, we become parties to his crime, we excite re- 
 taliation ; we encourage criminals to take refuge among us. 
 We do that as a nation, which as individuals, it would be dis- 
 honorable, nay, criminal to do. If, on the contrary, we deliver 
 up the accused to the offended nation, we only fulfil our part of 
 
the social compact, which directs that the rights of nations as 
 well as individuals should be respected, and a good understand- 
 ing maintained between them ; and this is the more requisite 
 among neigh^uring States, on account of the daily commu- 
 nications which must necessarily subsist between them. 
 
 A modern writer, (Instit. dii Droit des Gens, &c., par le (5e- 
 rard de Rayneval, liv. 2, ch. 3, ss. 4, p. 134,) on the Laws of 
 Nations, says « La communication journalidre entre deux 
 pais limitrophes est inevitable, et elle doit etre d’autant plus 
 favoris6e par leurs gouvernemens respectifs, qu’elle est natur- 
 ellement fondees sur des besoins reciproques et qu’elle donne 
 par Ih, lieu 4 des changes, d’ailleurs elle etablit entre les habi- 
 tants respectifs des liaisons, et une sorte de confiance qui 
 assurent leur tranquillity, et contribuent a leur jouissances.” 
 
 Indeed, said the learned Chief Justice Reid, were we to take 
 into account the opinions of modern writers on International 
 law, we would bo still more strongly fortified in the principle 
 we here hold, and we see no reason why those opinions should 
 be rejected. At all events, said the Judge, we may safely say, 
 that at the present day, the world has become enlightened in 
 the science of government as well as in all the other depart- 
 ments of human knowledge, far beyond what was known to 
 those writers who have lived centuries ago, and therefore, 
 that the maxims of government of the present day may be 
 considered at least as well understood and better adapted to 
 the rights and feelings of mankind, than they could have been 
 in the days of Grotius and Pufiendorf. What, said this emi- 
 nent J udge, we have to determine is, whether there was legal 
 ground for the arrest and surrender of the prisoner ? and we hold 
 there was. The prisoner, said he, comes before us in a very 
 different character from that of a subject to whom protection is 
 due as a matter of right ; he is an alien, to whom protection is 
 not due, if the King sees fit to withhold it. The observation 
 of J udge Tilghman may well be applied to him : “ that he can- 
 not force himself into the King’s territories and say, you shall 
 protect me?’ It is held, (see Chitty on Prerog., p. 49 ; 1 Black 
 Com., 259-260,) that alien friends may lawfully come into the 
 
country without any license or protection from the Crown , 
 though it seems that the Crown, even at common law, and by 
 
 thelawofnations, possesses a right to order them on o 
 
 country, or prevent them from coming into 
 Majesty thinks fit : and the reason given, is see (1 Chitty Criro. 
 Law, 131 and 143, note (a) ) that it is inseparable from the go- 
 verning power in any country, that it shall he able to take pre- 
 cautions against foreigners residing in such country, and parti- 
 cularly in a country where foreigners are only amenable to the 
 ordinary laws. The prisoner, said the Judge, came into this 
 Province under suspicious circumstances, charged with felony ; 
 as an alien his conduct did not merit protection— unless he had 
 come with a fairer character— and he ought not to be surpris- 
 ed, nor to complain that His Majesty’s Government should 
 direct him to be taken back to that country whence he came. 
 
 Applying, said Mr. Devlin, this Judgment to the case in 
 question, may we not say that the prisoners now before this 
 Court should not complain, if you, one of Her Majesty s 
 Judges, should hold that they should be taken back to that 
 country whose laws they so shamefully violated. That hay- 
 ing outraged the laws of humanity as they, the prisoners, did 
 at St. Albans, they have not the right to say, we will 
 force ourselves into your Canadian territory j and though 
 our guilt should involve you in war, we will still persist in de- 
 manding that you should assume all the responsibilities of our 
 crimes, and, cost what it may, that you should shield us from 
 the penalty due to our offences. This, said the learned Coun- 
 sel. is the ridiculous pretension unblushingly set up on be- 
 half of the 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 well known case of Muller, whose extradi- 
 tion was demanded by the British Government upon a charge 
 of murder. The application for his surrender was investigat- 
 ed in the City of New York, before Mr. Commissioner Newton. 
 In rendering judgment, the learned commissioner made the 
 
following pertinent remarks, which will be found at (pp 28 and 
 30) of the published report of the proceedings had in that case. 
 
 “ The evidence is such as would plainly require the commit- 
 ment of Muller for trial if the offence had been committed 
 here, and it results that a certificate leading to his extradition, 
 that the case may undergo an investigation in England, should 
 be granted.” And on this the Commissoner, in the following 
 
 language, applied the law clearly applicable to that and everv 
 
 other case arising under the Treaty : « Having heard and care- 
 fully considered the remarks made by the counsel for the de- 
 fence 1 am at a loss to see, after having carefully considered the 
 testimony,and weighing it in my mind, that there is notsufficient 
 evidence for me, sitting here simply as a magistrate, and the duty 
 for me being simply to determine, not whether the man is guilty 
 or not, but whether there is sufficient evidence to require that he 
 may be committed, in order to afford an opportunity at the 
 place where the crime was committed, of proving his guilt or 
 innocence. It is not necessary for me to say whether I would 
 absolutely convict the man, and sentence him to be hung, were 
 that even in my province, but the duty I have to perform is 
 simply this : first, has there been a crime committed ? If com- 
 mitted, is there probable cause from the evidence adduced to 
 say that the accused is the party who has committed the crime ? 
 Now it appears to my mind clear, that looking at it in that light 
 
 in the light of probable cause, — it is very plain that there" is 
 such cause. I do not desire to sit in judgment on this man, but I 
 wish it were in my power to discover any evidence in the case 
 whereby I could withhold the certificate ; but I am bound to 
 say that the combined circumstances, to my mind appear so clear 
 and so distinct, that upon the question of probable cause I can- 
 not have any doubt.” 
 
 In the still more recent case of for murder 
 
 on the high seas, on board the British brig “ Raymond,'* in 
 which the prisoner desired to show by evidence that the act 
 was justifiable, the same judge applied the like clear principle, 
 as follows : “ Even admitting that evidence of justification could 
 be legally received fof which, however, under the Treaty I 
 
•20 
 
 have g.e.t doubt,) it is not To, m. to “ 
 
 might o, might no. huv, np.n “"t th, l a™ 
 
 iTy tolioLIIo 't'ht ,'lhan oTptobablo cause, ■rho sjpU 
 aJstion here to be decided is, whether there is sufficient pro- 
 
 Seaus. to justify his tc.utn f” ^L”!- 
 Whose jurisdiction the crime is charged to have oeen com 
 
 '""irthe case of Ternan (Boston Monthly L. R. vol. 26, p 510) 
 and others for piracy alleged to have been wmmitted smzmg 
 steamer “ J. L. Gerrity,” in the month of November, 1863, the 
 iudges of the Queen’s Bench in England, though differing in 
 opinion on the question whether piracy, jure gentium, was 
 Jithin the Treaty, did not controvert the same principle laid 
 dorh. Lord Chief Justice Cockbutn t « No douht, 
 
 Zu thoact ol seining the .essel, saying .tithe same t me 
 that 'it is seized for the Confederates, may raise a presumption 
 of such an intention ; but then all the circumstances must be 
 looked at to see if the act was really done piratically, uhich 
 ^Id be for the jury ; and I cannot say that the magistrate was 
 not justified in committing the prisoner for trial. 
 
 And Mr. Justice Crompton observed, “ Upon the latter point 
 I quite concur with my Lord, because it is not for us to weigh 
 the effect of the evidence which is for the jury ; and all we 
 can consider is whether there was enough to justify a commit- 
 tal for trial, and I agree with my Lord that we cannot say that 
 
 there was not.” 
 
 It is unnecessary to multiply authorities on a point so clearly 
 defined by the Treaty, but the following observations of Attor- 
 nev-General Cushing, (opinions of Alty’s General, vol 4, p. 
 204 and 2U,) in advising the Government of the United States 
 in a case where the prisoner arrested for extradition on a charge 
 of murder desired to prove insanity before the committing 
 magistrate, are so pertinent that they are quoted: « The evi- 
 dence upon the exhibition of which this {i. e., delivery iip to 
 iustice) is to be done, is such as, according to the laws of the 
 place where the fugitive or person charged shall be found. 
 
 
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 would justify his apprehension and commitment for trial if the 
 crime or ofience had been there committed/’ 
 
 Had the Treaty conferred upon the magistrate — if it could 
 have been made competent to such an object — the power of 
 trying the person charged for an offence committed within a 
 foreign jurisdiction, and of punishing in case of ascertained guilt, 
 the inquiry might have presented itself in a different aspect. 
 But the stipulations under examination aim at no such end, but 
 are confined to the ascertainment of facts which can weigh 
 nothing in any consequent and purely judicial investigation of 
 the charge .^’ — Ibid p, 211. 
 
 These opinions and decisions are, I think, well worthy the at- 
 tention of this Court as showing that upon the establishment 
 of a prima facte case of guilt, the extradition of the accused 
 should be ordered, leaving him to plead matters of justification 
 before the Court and Jury invested with jurisdiction to try the 
 merits of the offence. 
 
 Believing that sufficient notice has been taken of this point, 
 I will now proceed to show by authority, which cannot be con- 
 troverted, that the surrender of fugitives from justice is a nation- 
 al obligation. That it is the law and usage of nations, resting 
 on the plainest principles of justice and public utility, to deliv- 
 er up offenders charged with felony and other high crimes, and 
 fleeing from the country in which the crime was committed, 
 into a foreign and friendly jurisdiction. 
 
 In the matter of Washburn, (Johnson’s Chan. Repts. 4? vol.) 
 arrested in Troy upon a charge of having stolen $350 in Mon- 
 treal, the Chancellor who was applied to for his discharge, said : 
 When a case of this kind occurs, it becomes the duty of the 
 Magistrate, on due proof of the fact, to commit the fugitive, to 
 the end that a reasonable time may be afforded for the Govern- 
 ment here to deliver him up, or for the foreign Government to 
 make the requisite application to the proper Authorities here for 
 his surrender. This doctrine is supported equally by reason 
 and authority. 
 
 Vattel observes (B. 2, C. 6, S. 76,) that to deliver up one*s 
 
own subjects to the offended State, there to receive justice, is 
 pretty generally observed, with respect to great crimes, or such 
 as are equally contrary to the laws and safety of all nations. 
 Assassins, incendiaries and robbers, he says are seized every- 
 where, at the desire of the Sovereign in the place where the 
 crime was committed, and delivered up to his Justice. The 
 Sovereign who refuses to deliver up the guilty, renders himself, 
 in some measure, an accomplice in the injury, and becomes re- 
 sponsiblefor it. Professor Martens, also in his Summary of the 
 Law of Nations, p. 107, says, that according to modern custom, 
 a criminal is frequently sent back to the place where the crime 
 was committed, on the request of a power who offers to do the 
 like service, and that we often see instances of this. 
 
 Grotius, who is of still higher authority, declares : (B. 2, cap. 
 21, S. 3, 4, 5,) that the stale is accountable for the crimes of its 
 Subjects committed abroad, if it affords them protection; and 
 therefore the state where the offender resides, or has fled to, 
 ought, upon application and examination of the case, either to 
 punish him according to his demerit, or to deliver him up to 
 the foreign state. 
 
 Heineccitis, in his commentary on these passages (Prmlec in 
 Grot. h. t.) admits that the surrender of a citizen, who commits 
 a crime in a foreign country, is according to the law of nations 5 
 and he says further, that it is to be deduced from the principles 
 of natural law. We ought either to punish the oflender our- 
 selves, or deliver him up to the foreign Government for punish- 
 ment. So Burlamagui, (port 4, c. 3, S. 23 to 29,) follows the 
 opinion of Grotius, and maintains that the duty of delivering up 
 fugitives from justice is of common and indispensible obligation. 
 
 In the matter of Washburn previously referred to, the Chan- 
 cellor said : ‘‘ It has been suggested that theft is not a felony of 
 such an atrocious and mischievous nature, as to fall within the 
 usage of nations on this point. But the crimes which belong to 
 the cognizance of the law of nations are not specially defined ; 
 and those which strike deeply at the rights of property, and are 
 inconsistent with the safety and harmony of commercial inter- 
 course, come within the mischief to be prevented, and within the 
 

 
 
 23 
 
 necessity, as well as the equity, of the remedy. They are all 
 equally invasions of the rights of property, and incompatible 
 with the ends of civil society. Considering the great and con- 
 stant intercourse between this State and the Provinces of 
 Canada, and the entire facility of passing from one dominion 
 to the other ; it would be impossible for the inhabitants on the 
 respective frontiers to live in security, or to maintain a friendly 
 intercouree with each other, if thieves could escape with impu- 
 nity, merely by crossing the territorial line. The policy of the 
 nation and the good sense of individuals would equally con- 
 demn such a dangerous doctrine.’’ 
 
 In ifcni’s commentaries, (Vol. 1, p. 36,) Phillimore, (Vols. 1 
 and 2,) Zobriskies New Jersey Reports, (Vol. 3, p. 377,) Ruther- 
 forth, (B. 2, c. 9, S. 12,) the same doctrines are enunciated as 
 forming part of the law of nations. 
 
 Here I will leave this branch of the case, and here I might 
 leave it altogether. Because, the pretended belligerency claim- 
 ed for the prisoners, and boldly set up as a justification of their 
 crimes, involves a question which the reading of the foregoing 
 authorities, clearly shows, if it has any existence, (and I deny 
 that it has in the present case,) can only be determined at the 
 time of the trial of the prisoners, and not upon a preliminary in- 
 vestigation of this kind. But, as my learned friends have opened 
 before us the wide field of international law, and defiantly chal- 
 lenged us to enter, I will not shrink from a consideration of the 
 question even from this new and foreign point of view, much 
 as it is in my opinion, out of place in the present enquiry. Upon 
 this point, the arguments of the learned Counsel lead me to 
 suppose that they view the acts of the prisoners at St. Albans 
 in the light of belligerent acts. And in support of this preten- 
 sion they have cited with a show of apparent seriousness, certain 
 writers, to prove that as what their clients did, was from their 
 point of view, done, by virtue of previously acquired belligerent 
 rights, therefore the crimes committed by the prisoners at St. 
 Albans, cannot be made the subjects of enquiry before the tribun- 
 als of a neutral Country. But the learned gentlemen must be 
 reminded, that before they can invoke the operation of interna- 
 
24 
 
 tional law to justify, excuse, or palliate the outrages of which 
 they are accused, they must have 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 recognised 
 Military Authority, to commit the act complained of. That the 
 circumstances under which it was undertaken and executed, 
 exempted them from criminal responsibility, and above all, even 
 supposing that the prisoners were so authorised, that they have 
 not forfeited their belligerent character, by commencing their 
 attack from a Neutral and friendly territory. 
 
 In the absence of such proof, it is perfectly manifest that their 
 International law can have no application ; and for this very 
 good reason, that without it there is nothing ot record to 
 which the ingenuity of the most skilful pleader can possibly 
 make the application. I will, therefore, as next in order, exa- 
 mine the evidence, such as it is, submitted by the prisoners 
 upon these points, all of which I undertake to demonstrate they 
 have bignally failed to prove. 
 
 The defence of the prisoners rests upon the pretended com- 
 mission produced by Bennett H. Young, which it has been stre- 
 nuously urged entitles him to the recognition of an officer in 
 the service of the so-called Confederate States. And further, 
 that under this commission, and certain mysterious instructions 
 communicated to him by one C. C. Clay, Young, and his accom- 
 plices were fully licensed to commit all kinds of depredations 
 at St. Albans, or elsewhere in the United States. 
 
 This being the modest pretension of the prisoners’ Counsel, 
 we will now see how far it is borne out by reference to the 
 commission itself, which is in these words : — 
 
 Lieutenant Youngs Commission. 
 
 Confederate States of America, ) 
 War Department, > 
 
 Richmond, June 16th, 1864*. j 
 
 Sir, — You are hereby informed that the President has ap- 
 pointed you First Lieutenant, under the Act 121, approved Fe- 
 bruary I7th, 1864?, in the Provisional Army, in the service of 
 
 
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 25 
 
 the Confederate States, to rank as such from the 16th day of 
 June, 1864. Should the Senate, at their next sessiouy ADVISE 
 and CONSENT THERETO, you will be commissioned ac- 
 cordingly. 
 
 Immediately on receipt thereof, please to communicate to 
 this Department, through the Adjutant and Inspector General’s 
 Office, your acceptance or non-acceptance of said appointment, 
 and, with your letter of acceptance, return to the Adjutant and 
 Inspector General the oath herewith enclosed, properly filled 
 up, subscribed, and attested, reporting at the same time your 
 age, residence, when appointed, and the State in which you 
 were born. 
 
 Should you accept, you will report for duty to 
 
 (Signed) Jas. A. Seddon, Secretary of War. 
 
 Lieut. Rennet H. Young, &c., &c., P.A.C.S. 
 
 This, your Honor, is the document which you are asked to re- 
 gard as a commission, and to accept as an authority for the per- 
 petration of the crimes committed by the prisoners at St. Al- 
 bans. A modest request surely, considering that upon the face 
 of this same piece of paper, it appears that a commission will 
 only be given, provided the Senate at their next session advise 
 and consent thereto. But there has been no attempt to prove 
 that the Senate ever did advise or consent thereto, nor is there 
 a particle of evidence to show that Young ever communicated 
 his willingness, verbally or in writing, to accept of such ap- 
 pointment, or that he ever took the required oath. To get rid 
 of these difficulties, witnesses have been examined with the 
 view of proving that it was the custom of the Confederacy to 
 issue commissions in this conditional form, to be ratified after- 
 wards when the Senate met. Well, if such a practice had pre- 
 vailed, it might, perhaps, have answered the purpose intended. 
 But surely the matter assumes an entirely different aspect when 
 the holder of such a document leaves the limits of the so-called 
 Confederacy, and goes abroad to rob and murder by virtue of 
 such authority. The pretence that this piece of paper is suffi- 
 cient to justify the crimes committed by the prisoners at St. 
 
26 
 
 Albans, is so monstrous as to excite astonishment at its having 
 been urged upon the attention of the Court. Indeed, it is well 
 calculated to induce the belief that we are trifling with our 
 Treaty obligations. 
 
 It has, however, been said on behalf of the accused, that Y oung 
 received instructions subsequent to his pretended commission 
 which supply the authority of the Senate and establish his mili- 
 tary status. These instructions I will now read word for word 
 as I find them in the evidence. 
 
 Confederate States of America, 
 
 War Department, 
 
 Richmond, Va., June 16th, 1864*. 
 
 To Lieut. Rennet H. Young ; 
 
 Lieut., — 
 
 You have been appointed temporarily first Lieut, in the Pro- 
 visional Army for special service. You will proceed without 
 delay by the route already indicated to you, and report to C. C. 
 Clay, jun., for orders. You will collect together such Confed- 
 erate soldiers who have escaped from the enemy, not exceed- 
 ing twenty in number, that you may deem suitable for that 
 purpose, and execute such enterprises as may be indicated to 
 you. You will take care to organize within the territory of 
 the enemy, to violate none of the neutrality laws, and obey 
 implicitly his instructions. You and your men will receive 
 transportation and customary rations, and clothing or commu- 
 tation therefor. 
 
 jAmes a. seddon, 
 
 Sec. of War. 
 
 Confederate States of America, 
 War Befpartment. 
 Richmond, Va., June 16th, 1864. 
 
 To Lieut. Rennet H. Young, 
 
 Lieut. — You have been appointed temporarily 1st Lieut, in 
 the Provisional Army for special service. 
 
You will proceed without delay to the British Provinces, 
 where you will report to Blessrs. Thompson and Clay for instruc- 
 tions. 
 
 You will, under their direction, collect together such Confed- 
 erate soldiers who have escaped from the enemy, not exceeding 
 twenty in number, as you may deem suitable for the purpose, 
 and will execute such enterprises as may be entrusted to you. 
 You will take care to commit no violation of the local law, 
 and to obey implicitly their instructions. You and your men 
 will receive from these gentlemen, transportation, and the cus- 
 tomary rations and clothing, or commutation therefor. 
 
 JAMES A. SEDDON, 
 
 Sec, of War. 
 
 Va., June 16th. 
 
 Confederate States of America, 
 
 War Department, 
 
 Richmond, Va., June l6th, 1864>. 
 
 Lieut. B. H. Young is hereby authorized to organize for spe- 
 cial service, a company not to exceed twenty in number from 
 those who belong to the service and are at the time beyond the 
 Confederate States. 
 
 They will be entitled to their pay, rations, clothing, and 
 transportation, but no other compensation for any service which 
 they may be called upon to render. 
 
 The organisation will be under the control of this Depart- 
 ment, and liable to be disbanded at its pleasure, and the mem- 
 bers returned to their respective companies. 
 
 JAMES A. SEDDON, Secretary of War. 
 
 Here, your Honor, we have no less than three different sets 
 of instructions, emanating, we are told, from the Confederate 
 Secretary of War, and each of them upon the 16th of June. 
 In the first instructions given. Young is ordered to proceed 
 without delay by the route already indicated to him, and to 
 report to C. C. Clay, Jur., for orders. In the second, the same 
 
28 
 
 Bennett H. Young is ordered to proceed without delay to the 
 British Provinces, and there report himself to Messrs. Thomp- 
 son and Clay for instruction. While in the third set of in- 
 structions he is informed, that the organization will be made 
 under the control of the War Department. Now, how are we 
 for the purposes of this enquiry, to reconcile these conflicting 
 orders 1 Can we seriously believe that Jas. A. Seddon, suppos- 
 ing him to have been a sane man upon the 16th of June last, 
 ever subscribed his name to orders so ridiculously contradictory 
 to each other? For my part, I incline to the belief, that he 
 did not, and for this reason, that I am strongly impressed with 
 ^he conviction that the pretended commission and instructions 
 have been fabricated to meet the exigency of the prisoners’ 
 position. But whether I am right in this conjecture or nob 
 matters little, as neither the so-called commission nor its accom- 
 panying instructions, convey any authority to the prisoners to 
 engage in acts of murder or robbery. Indeed, so true is this, 
 that we find their Counsel relying for a justification of their 
 crimes, not upon the alleged authority of James A. Seddon, but 
 upon the order of the mysterious C. C. Clay, whom, nobody in 
 Canada, except the prisoners and their Counsel, seems to have 
 seen, known, or cared about. Remembering, however, that C» 
 C. Clay, Junr., has figured conspicuously in this investigation; 
 that it is he, whom we are told, planned, authorised, and direct- 
 ed the execution of the St. Albans’ Raid, that it was his com- 
 mand the prisoners obeyed, and stated they were bound to obey, 
 I feel myself called upon to examine his authority to sanction 
 the crimes committed at St. Albans, and to issue military 
 orders from Canada. 
 
 Here is his letter to Young: — 
 
 PAPER P. 
 
 Mem. for Lieut. Bennet Young, C. S. A. 
 
 Your report of your doings, under your instructions of 16th 
 J une last from the Secretary of War, covering the list of twenty 
 Confederate soldiers who are escaped prisoners, collected and 
 enrolled by you under those instructions, is received. 
 
Your suggestions for a raid upon accessible towns in Vermont, 
 commencing with St. Albans, is approved, and you are author- 
 ised and required to act in comformity v/ith that suggestion. 
 October 6, 1864. 
 
 C. C. CLAY, JUN. 
 
 Commissioner, C. S. A. 
 
 Now, I think it may be fairly asked, who is this C. C. Clay> 
 who has arrogated to himself such extraordinary powers in a 
 neutral Territory. George N. Sanders, in his evidence, says : I 
 know Mr. C. C. Clay, whose name is subscribed to document 
 P. He was then exercising the authority of a Confederate 
 agent, claiming full ambassodoriaZ powers^ as well civil as mili- 
 tary. I had several conversations 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 Bennet H. 
 Young was instructed by him to carry it out. Mr. Clay told 
 me about the eighth day of December last, a few days before he 
 left, that he would leave such a letter as the paper writing 
 marked P, and which I infer had not been written up to that 
 time. The letter which he said he would write on that occasion 
 was a letter assuming all the responsibility of the St. Albans 
 raid, for which he was responsible. 
 
 Now, if we are to believe Sanders, and I know of no reason 
 why we should disbelieve his testimony upon this point ; the 
 prisoners had only the verbal authority of C. C. Clay, for their 
 doings at St. Albans, upon the 19th of October. The letter, or 
 memorandum, as it is called, bearing date 6th October last, was 
 undoubtedly written after the prisoners’ visit to St. Albans, and 
 in the month of December, a day or two before C. C. Clay 
 withdrew himself from Canada. But this again, is of little 
 consequence, for it is to be hoped that the assumed authority in 
 Canada of a soi-disant Southern rebel agent, will not be permitt- 
 ed to over-ride our own laws,to nullify our treaties, and to imperil 
 onr friendly relations with the United States. Besides, Clay, of 
 all others is least entitled at our hands to friendly recognition. 
 It is in evidence, that from the moment he set foot in this 
 
30 
 
 Province, he disregarded oiu neutrality laws, which so long as 
 he claimed an asylum in Canada were as binding upon him 
 » as upon us. And Clay knew this, as appears by the evidence 
 of Wm. M. Cleary, who says : “ The reason why at an earlier 
 stage of this enquiry I did not produce this paper, ordering 
 Young to proceed to the British Provinces, to report himself to 
 Messrs. Thompson and Clay for instructions, was, that after a 
 consultation I had with the Counsel for the defence, it was de- 
 cided not to produce it, because it might involve Clay in a 
 breach of the neutrality laws.” 
 
 Another paper, omitting the vjoxds proceed to the British Pro 
 vinceSy was, therefore, substituted ; a proceeding, which shows 
 the dexterity of the prisoners’ friends in manufacturing evi- 
 dence to meet the requirements of their case. Is it not how- 
 ever strange, that Clay, who, (according to Mr. Sanders,) 
 claims to exercise in Canada, full Ambassadorial powers, civil 
 as well as military, has not made his appearance at any time 
 during this investigation ? Assuredly, if he is clothed, as 
 Sanders tells us, with such high power and authority, his evi- 
 dence might have been of some importance to the prisoners. 
 At any rate, it would have been interesting to very many, no 
 doubt, to be afforded an opportunity of seeing the first Ambas- 
 sador Canada could ever boast of having within her borders. 
 But the fact is, your Honor, Clay, dared not appear. And as a 
 proof of this, we find, that in order to screen his own guilt, 
 and to save himself from punishment, he has fled from Canada, 
 taking with him, if report be true, and I doubt it not, much 
 more than his share of the monies stolen by the prisoners 
 from the people of St. Albans. And yet, it is the authority 
 of this conspirator against the laws of the United States, against 
 the peace, dignity and welfare of Canada ; he, who had not 
 even the courage to stand by his friends and accomplices in 
 their hour of trial, that is set up as a justification of the St. Al- 
 bans outrages, and for which judicial recognition is demanded 
 from this Court. I believe, however, that your Honor will not 
 sanction such a monstrous proposition for a moment — one ut- 
 terly abhorrent to every idea of justice, and one which, I 
 
31 
 
 
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 ring ft 
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 M\ 
 
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 prisoK 
 
 iiaay,i 
 
 iLii 
 
 rbcnlc 
 
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 -<)«<■ 
 
 hesitate not to say, if entertained by the people of this Pro- 
 vince, will, I verily believe, be regarded, and justly so, by the 
 United States as tantamount to a declaration of war against 
 them. I say justly so. Sir, because, if you discharge the pri- 
 soners, it must be that you regard them as belligerents, and 
 the crimes imputed to them at St. Albans, as so many acts of 
 legitimate warfare. Now, considering the circumstances under 
 which this robbing expedition was planned and executed — that 
 it was concocted in Canada, and started from Canada, and that 
 it has no higher authority to rest upon than the memorandum 
 of C. C. Clay, can we be surprised that our recognition and ju- 
 dicial sanction of such an atrocious outrage should excite the 
 indignation of the people of the United States, and induce 
 them to look upon us as their enemies ? 
 
 But, before I leave this point, let me remind your Honor, that 
 Mr. Davis, the President of the so-called Confederate States, has 
 not to this hour, acknowledged the acts of the prisoners,or in any 
 way assumed the responsibility of what they did at St. Albans. 
 In support of this statement, I refer to the evidence of the 
 Revd. Stephen F. Cameron, the messenger dispatched to Rich- 
 mond, to obtain from there a ratification of the prisoners’ acts? 
 or such other evidence as would prove that their raid was 
 directed, sanctioned, and authorised by the Confederate Govern- 
 ment, and that they, the prisoners, were duly commissioned 
 officers and soldiers of the Confederacy. Your Honor will re- 
 member how often and how earnestly my learned friends pro- 
 tested against being called upon for the defence of their clients, 
 until they had an opportunity of communicating with Rich- 
 mond. But why this necessity for communication with Rich- 
 mond if the pretended commission and written memorandum 
 of C. C. Clay were at the time of their production by the pri- 
 soners, as we are told they were, sufficient to prove their military 
 status 1 The fact is. Sir, my learned friends knew then, as they 
 know now, if they would but make the admission, that the 
 prisoners had no authority whatever to justify their crimes, or 
 to stay the demand for their extradition. And hence their 
 frequent appeals for delay, to communicate with the magistracy 
 
32 
 
 at Richmond. Well, that delay was accorded to them, and 
 now that the messenger has returned, let us see what he has 
 brought to aid the cause of the prisoners. I find, Sir, that he 
 has laid before this Court as the result of his perilous journey, 
 three copies of three muster rolls of three Companies, in 
 which the names of the prisoners have been very badly written 
 indeed ; and so far back it would seem as two years ago. 
 Now, your Honor, this is not the kind of evidence which the 
 prisoners in their affidavits fyled in support of their application 
 for delay, stated they needed for their defence, and could pro- 
 cure upon communication with Richmond. The truth is, they 
 had hoped that the Confederate President, if appealed to, 
 might be induced to avow their acts. But, although I would 
 not attach the least importance to his avowal, even if it had 
 been made, it is still worthy of remark, that he has withheld 
 it. And the reason, said Mr. Cameron in his evidence, is. 
 That his General Order in the Burley case, had been disre- 
 garded by the Judges of Upper Canada. President Davis, ob- 
 served the witness, seemed and indignant of the facts. 
 This, your Honor, is the excuse offered for the reticence of 
 Mr. Davis ; for his unwillingness to hold himself or his Govern- 
 ment, such as it is, responsible for the outrages committed at 
 St. Albans. Will you then, seeing that the Confederate au- 
 thorities have pointedly refused to acknowledge the Military 
 status claimed for the prisoners, supply the want by the sub- 
 stitution of your sanction for their authority! I earnestly 
 hope you will not place yourself in such an unenviable 
 position; a position which I take the liberty of saying would 
 be dishonoring to the high character of the judiciary, and ex- 
 tremely prejudicial to the best interests of the people of Ca- 
 nada. With these remarks upon this branch of the question at 
 issue, 1 will now in reply to my learned friends, proceed to 
 consider our neutral obligations to the United Stales, and with 
 the further object of showing that it is not only our duty, but 
 our interest, if we wish to secure to ourselves a continuance of 
 the blessings of peace, to observe a strict impartiality in the 
 
pending conflict, and not to favor one of the contending parties 
 to the injury of the other. ^ 
 
 Duty of Neutrals. 
 
 Chief Justice Jmj, in his charge to the Grand Jury, in the 
 case of Wenfield, {Reported in Wharton's Kept, of State trials 
 in U. S.) accused of a violation of the neutrality laws of 
 the United States, made the following sensible remarks, 
 which I quote, as being in my opinion precisely applicable to 
 our state at this moment. That eminent Judge said « By 
 the laws of nations, the United States, as a neutral power, are 
 bound to observe the line of conduct indicated by the procla- 
 mation of the President towards all the belligerent powers, 
 and that although we may have no treaties with them. Surely 
 (said he) no engagements can be more wise and virtuous than 
 those whose direct object is to maintain peace and to preserve 
 large portions of the human race from the complicated evils 
 incident to war. While the people of other nations do no vio- 
 lence or injustice to our citizens, it would certainly be criminal 
 and wicked in our citizens, for the sake of plunder, to do vio- 
 lence and injustice to any of them. 
 
 If you let loose the reins of your subjects, against foreign 
 nations, these will behave in the same manner to jou, and 
 instead of that friendly intercourse which nature has established 
 between all men, we should see nothing but one nation robbing 
 another. The respect which every nation owes to itself imposes 
 a duty on its Government, to cause all its laws to be respected 
 and obeyed, and that not only by its proper citizens but also by 
 those strangers who may visit and occasionally reside within 
 its territories. There is no principle better established than 
 that all strangers admitted into a country are during their res- 
 idence subject to the laws of it, hence it follows that the sub- 
 jects of belligerent powers are bound, while in the country, to 
 respect the neutrality of it.” 
 
 Did Clay do this? Did the prisoners do it ? St. Albans ans- 
 wers no, and well it may so answer. 
 
 “While” said the learned Judge, “ wecontemplate with anxi- 
 
ety and regret the desolation and distress which a war so gen- 
 erll (war was then being carried on bet ween Aujria, Prussia, 
 Sardinia, Great Britain and the United Netherlands of the one 
 part, and France of the other,) and so inflamed will probably 
 spread over more than one country, let us with becoming gra - 
 itude wisely estimate and cherish the peace, liberty, andsafe y 
 with which the Divine Providence has been pleased so liberally 
 to bless us. Self preservation is a primary duly of a state as well 
 as of an individual. To love and to deserve an honest fame, is an- 
 other duty of a state as well as of a man. To a state as well 
 as to a man, reputation is a valuable and an agreeable posses- 
 Sion. But with war and rumours of war, our ears in this imper- 
 
 , otill accnilf^H. 
 
 Rtntft of thinirs. 
 
 Into this unnatural state ought a nation to suffer herself to e 
 drawn without her own act, or the act of him, or them, to 
 whom for the purpose she has delegated her power ? 
 
 Into this unnatural state should a nation suffer herself to be 
 drawn by the unauthorized, nay, by the unlicensed conduct 
 of her citizens 1 
 
 Humanity and reason, says Vcittcl^ say no. 
 
 In the case of Talbot rs Janson, for a breach of neutrality 
 law, (1 Curtis^ Repts. of Decision in the Sup. C. of the IJ. S., 
 p. 134*,) Judge Patterson said ; — “ The United States are neu- 
 tral in the present war ; they take no part in it ; remain com- 
 mon friends to all the belligerent powers, not favoring the arms 
 of one to the detriment of the others. An exact impartiality 
 must mark theii conduct towards the parties at war, for if they 
 favor, they favor one to the injury of the other. It would be 
 a departure from pacific principle.*?, and indicative of a hostile 
 disposition. It would be a fraudulent neutrality.” At (p. 136) 
 he says: — ‘‘ The principle deducible from the law of nations is 
 plain ; you shall not make use of our neutral arm to capture ves- 
 sels of YOUR enemies^ hut of our friends. If you dOy and bring the 
 captured vessels tvithin our jurisdiction y restitution will he award- 
 ed. Both the powers in the present instance, though ene- 
 mies to each other, are friends of the United States, whose 
 
35 
 
 
 
 \\ 
 
 citizens ought to preserve a neutral attitude, and should not 
 assist either party in their hostile operation.” 
 
 PhUlimore (V. l,2,p. 189) says: A Rebellion or a civil 
 
 commotion, it may happen, agitates a nation ; while the autho- 
 rities are engaged in repressing it, bands of rebels pass the 
 frontier, shelter themselves under the protection of the Coter- 
 minous State, and from thence, with restored strength and 
 fresh appliances, renew their invasions from the State in which 
 they have escaped. The invaded States remonstrate. The 
 remonstrance, whether from favour to the rebels, or feebleness 
 of the executive, is unheeded, or at least, the evil complained 
 of, remains unredressed. 
 
 In this state of things, the invaded State is warranted by inter- 
 national taw in crossing the frontier^ and in taking the necessary 
 means for her safety ^ whether these be the capture or dispersion of 
 the rebels^ or the destruction of their stronghold^ as the exigencies 
 of the case may fairly require. 
 
 In (3rd PhUlimore^ p. 89.) it is laid down, that the conduct of 
 a State which allowed, through indifference or gross remissness, 
 its subjects to invade the rights of another State, would fall 
 under what is classed as culpable imprudence. If indeed 
 the State permitted, or connived at the offence, and sheltered 
 the offender, it would be just as much an aggressor, as if the 
 invasion had been made by the Regular forces of the kingdom. 
 But when the individuals of any State violate this general law, 
 it is then the interest, as well as the duty of the Govern- 
 ment under which they live, to animadvert upon them with 
 a becoming severity, that the peace of the world may be main- 
 tained. For in vain would nations, in their collective capacity, 
 observe these universal rules, if private subjects were at liberty 
 to break them at their own discretion, and involve the two 
 States in war. It is, therefore, incumbent upon the nation in- 
 jured, first, to demand satisfaction and justice to be done on the 
 offender by the State to which he belongs ; and, if that is re- 
 fused or neglected, the Sovereign then avows himself an accom- 
 plice or abettor of his subjects’ crimes, and draws upon his 
 community the calamities of foreign war. 
 
 1 
 
 \ 
 
 ‘ I 
 I 3 
 
 I 
 
 E 
 
36 
 
 Wheaton, (p. 716,) says : The respect due to neutral territor- 
 ial seas is not confined to a total abstinence, from every act 
 of hostility ; it equally extends to the proceedings immediately 
 preparatory to those acts. Thus a fleet or vessel of war, or pri- 
 vateer, cannot without committing a vioktion of territory, es- 
 tablish itself upon any point of this sea, in order to watch the 
 passage of vessels, whether of war or merchantmen of the 
 enemy or neutral ships, even if it leaves its retreat, in order to 
 attack them outside of the limits of the neutral jurisdiction. 
 Without doubt,hostilities, the employment of force, the exercise 
 of the right of war, have no place within the J urisdictional lim* 
 its of pacific Sovereigns friendly to the two but the law of 
 
 war does not admit that the territory of a neutral people should serve 
 as an ambuscade for one of the belligerents to favor his operations 
 of the war to the detriment of the other. All the prizes made 
 under such circumstances are then unlawful, and give to the 
 neutral the right of claiming from the belligerent, who does 
 these acts, a reparation, as if they had been committed on his 
 own proper territory, and within the limits of his Jurisdiction. 
 
 In consequence of the laying in wait at Southampton, by an 
 American steamer of war, watching for the departure of a Con- 
 federate armed steamer, and sending men on shore for that 
 purpose, Earl Russell wrote, January the 10th, 1862, to Mr. 
 Adams, “ I think it necessary to state to you, that, except in 
 case of stress of weather forcing them to land, Her Majesty’s 
 Government cannot permit armed men in the service of a foreign 
 Government, to land upon British Territory. {Ibid, page 
 721.) There is then no exception to the rule, that every vol- 
 untary entrance into neutral territory, with hostile purposes, is 
 absolutely unlawful. When the fact is established,” says Sir 
 W. Seott, it overrules every other consideration. A capture 
 made under such circumstances, is done away ; the property 
 must be restored, notwithstanding that it may actually belong 
 to the enemy. {Ibid page 727.) It is a settled principle of the 
 law of nations, that no belligerent can rightfully make use of the 
 territory of a neutral State for belligerent purposes, without the 
 consent of the neutral Government.’^ 
 
37 
 
 Vattel, (B, 3, c. 7, p. 34«4*,) says : It is certain that if my neigh- 
 bour affords a retreat to my enemies, when defeated and tco 
 much weakered to escape me, and allows them to recover, and 
 watch a favorable opportunity of making a second attack on 
 my territories, this conduct so prejudicial to my safely and 
 interests, would be incompatible with neutrality. If therefore, 
 my enemies, on suffering a discomfiture, retreat into his coun- 
 try, although charity will not allow him to refuse them permis- 
 sion to pass in security, he is bound to make them continue 
 their march beyond his frontiers as soon as possible, and not 
 suffer them to remain in his territories to watch for a conve- 
 nient opportunity to attack me anew; otherwise he gives me a 
 right to enter his country in pursuit of them. Such treatment 
 is often experienced by nations that are unable to command 
 respect. Their territories soon become the theatre of war; 
 armies march, encamp and fight in it, as in a country open to all 
 comers. 
 
 Vattel, (Bj2, c. 6, p. 161,) says : But, if a Nation or its chief 
 approves and ratifies the act of the individual, it then becomes 
 a public concern; and the injured party is to consider the 
 Nation as the real author of the injury of which the citizen 
 was perhaps only the instrument. 
 
 If the offended State has in her power the individual who 
 has done the injury, she may without scruple bring him to 
 justice and punish him. If he has escaped and returned to his 
 own country, she ought to apply to his sovereign to have justice 
 done in the case. And since the latter ought not to suffer his 
 subjects to molest the subjects of other States, or to do them an 
 injury, much less to give open audacious offence to foreign 
 powers, he ought to compel the transgressor to make repara- 
 tion for the damage or injury, if possible, or to inflict on him an 
 exemplary punishment, or finally^ according to the nature and 
 the circumstances of the casCy to deliver him up to the offended 
 State y to be there brought to justice. • 
 
 Assassins, incendiaries and robbers, are seized everywhere, 
 at the desire of the sovereign in whose territories the crime 
 was committed, and are delivered up to his justice. 
 
The Sovereign who refuses to cause reparation to be made 
 for the damage done by his subject, or to punish the offender, 
 or finally, to deliver him up, renders himself in some measnre 
 an accomplice in the injury, and becomes responsible for it. 
 But if he delivers up either the property of the offender, as an 
 indemnification, in cases that will admit of pecuniary compen- 
 sation, or his person, in order thxO. he may suffer the punishment 
 due to his crime, the offended party has no farther demand on 
 
 Him. 
 
 In support of the doctrines and opinions thus enunciated, 
 many other eminent writers and authors could be quoted. But 
 I conceive that I have gone far enough in this direction, 
 and have adduced sufficient authority to refute the mistaken 
 opinions entertained by our opponents of the obligations im- 
 posed upon us by the laws of neutrality. 
 
 I now call your Honor’s attention to the case of Bennett G- 
 Barley, lately extradited upon the demand of the United States. 
 This person was arrested upon a charge of robbing one Ashley* 
 on board the Philo Parsons, a steamer sailing at the time on 
 Lake Erie. The prisoner when ordered to render an account 
 of his conduct before the Recorder of the City of Toronto, set 
 up as a justification of the act, that he. Burley, was a commis- 
 sioned officer in the service of the so called Confederate States, 
 that he was entitled to be regarded as a belligerent, and that his 
 object in taking forcible possession of the Philo Parsons, which 
 he and others did,in addition to the robbery of Ashley, was to use 
 her as a means to enable his party to effect the release of South- 
 ern prisoners detained in Camp Douglas, on Johnson’s Island. 
 The Recorder held that the act of robbery was not justified, and 
 ordered extradition. A writ of Habeas Carpus was next applied 
 for by the prisoner’s counsel. The application was made to 
 Chief Justice Draper, who had sitting with him three other 
 Judges. It was very ably argued and very ably opposed by the 
 counsel engaged on both sides, and after a patient and careful 
 consideration of the facts and the law applicable to them, the 
 writ of Habeas Corpus was by these learned Judges refused. 
 Be it remembered too, that in this case the prisoner produced 
 
an order or proclamation from the Confederate President avow- 
 ing the act of Burley, and assuming all the responsibility. But 
 the Judges held, and held rightly, that no such order or procla- 
 mation could justify the circumstances under which the crime 
 was committed, commencing with the violation of our neu- 
 trality laws, and that if the authority upon which the prisoner 
 relied, was of any value, the proper time and place to urge it as 
 matter of justification, was at his trial, and before the Court 
 having jurisdiction to hear and determine upon the merits of 
 the offence charged. There is then this difference between 
 the case of Burley and that of the prisoners now before this 
 Court, that Mr. Davis avowed Burley’s deed and refused to give 
 alike recognition to the acts of Bennett H.Young and his accom- 
 plices. But then the soundness, the legality of this judgment 
 have been questioned by ray learned friends on the other side. 
 Indeed one of them has carried his criticism to the extreme 
 length of saying, that the judgment is a disgrace to the Judi- 
 ciary of Upper Canada, and is a proof of the unfitness of the 
 Judges in thac section of the country, to deal with questions of 
 international law ! ! Perhaps this is the opinion of the gentle- 
 man who has denounced in such strong vituperative terms the 
 Chief Justice and his brother Judges. But certainly it is not the 
 opinion of the eminent writers upon international law, from 
 whose pages I have read, nor will it I trust be the opinion of 
 your Honor. I admit, however, that the learned Judges whose 
 judgment has provoked so much wrath, committed an unpar- 
 donable error in adjudging Burley’s case, without consulting 
 my learned friends, whom 1 am sure would have felt great 
 pleasure in indoctrinating their Honors with ideas of interna- 
 tional law as understood by Jeff. Davis, and practised by Raiders 
 generally. Believing, however, that the Bench of Upper 
 Canada will not be deterred from pursuing the path of recti- 
 tude, by the belligerent observations of my learned friend, and 
 that it is quite possible he might be induced to look upon them 
 with more favor, if he heard the reasons of their judgment 
 once more, I will now read a few extracts from the published 
 report of their decision, which, notwithstanding all that has 
 
40 
 
 been said to the contrary, I still persist in commending to the 
 careful attention of the prisoners’ counsel. 
 
 ‘‘ But,” said Chief Justice Draper^ “ conceding that there is 
 evidence that the prisoner was an officer in the Confederate ser- 
 vice, and that he had the sanction of those who employed him 
 to endeavour to capture the Michigan^ and to release the pri- 
 soners on Johnson’s Island, the manifesto put forward as a shield 
 to protect the prisoner from personal responsibility does not ex- 
 tend to what he has actually done — nay more, it absolutely 
 prohibits a violation of neutral territory or of any rights of neu- 
 trals. The prisoner, however, according to the testimony, 
 was a leader in an expedition, embarked surreptitiously from a 
 neutral territory. His followers, with their weapons, found him 
 within that territory, and proceeded thence to prosecute their 
 enterprise, whatever it was, into the territory of the United 
 States. Thus, assuming their intentions to have been what 
 was professed, they deprived the expedition of the character of 
 lawful hositility, and the very commencement and embar- 
 kation of their enterprise was a violation of neutral territory? 
 and contrary to the letter and the spirit of the manifesto pro- 
 duced. This gives a greater reason for carefully enquiring 
 whether, looking at the whole case, the alleged beligerent en- 
 terprise was not put forward as a pretext to cloak very different 
 designs. Taken by themselves, the acts of the prisoner himself 
 clearly establish ^prima facie case of robbery with violence — 
 at least according to our Jaw. The matters alleged to deprive 
 the prisoner’s acts of this criminal character are necessarily to 
 be set up by way of defence to the charge, and involve the ad- 
 mission that the prisoner committed the acts, but denying 
 their criminality. Assuming some act done within our ju- 
 risdiction, which, unexplained, would amount to robbery ; if 
 explanations were offered, and evidence to support them 
 were given at a preliminary investigation, the accused 
 could not be discharged — the case must be submitted to 
 a jury. This case cannot, from its very nature, be investi- 
 gated before our tribunals, for the act was committed within 
 the jurisdiction of the United States. Whether those fads are 
 
necessary to rebut Xheprima facie case can be proved, can only 
 be determined by the courts of that country. We are bound to 
 assume that they will try and decide it justly. 
 
 I do not, on the whole, think the prisoner is entitled to be 
 discharged. 
 
 I should add, that, considering the nature of the questions to 
 he determined, I requested the learned Chief Justice of the 
 Common Pleas, and my brothers Hagarty and John Wilson 
 who were all, at the moment, within reach, to sit with me and 
 aid me with their opinion. I am sustained by their concur- 
 rence in the conclusion at which I have arrived.” 
 
 Chief Justice “Taking the evidence adduced against 
 
 the prisoner, there seems to have been sufficient to warrant 
 his committal. Then, has he shown sufficient to relieve him 
 of the charge ? 
 
 If, on a similar matter occurring in this country,! was called 
 upon to decide whether I would discharge the prisoner or com| 
 mit him for trial, I should feel bound to commit him. I should 
 say, that looking at all the facts as they are presented on either 
 side, the conduct of those parties, and what they said and did 
 during the time the vessel was in their possession, was of that 
 equivocal character, that it would, in the most favorable view 
 suggested for the prisoner, be a matter for the consideration of 
 a jury, whether they were acting in good faith in carrying out 
 a belligerent enterprise, or whether they were not making an 
 expedition for the purpose of plunder, under pretence of a bel- 
 ligerent enterprise, thinking in that way more readily to escape 
 detection. 
 
 ^Entertaining the opinion I have expressed, it is my duty to 
 declare that the learned Recorder was warranted in deciding 
 to commit the prisoner for the purpose of being surrendered. 
 As long as the Extradition Treaty between this country and 
 the United States is in force, it ought to be honestly carried 
 out, and in all cases where the evidence shows that an offence 
 had been committed, though there may be conflicting evidence 
 as to the facts, or different conclusions drawn from the facts, 
 
42 
 
 yet in those cases where we would commit for trial, in similar 
 cases in this country, we are equally bound to commit to be 
 surrendered for trial under the Treaty and our Statute passed to 
 carry it out. We must assume that parties will have a fair 
 trial after their surrender, or we ought not to deliver them up 
 at all, or to have agreed to do so.” 
 
 Justice IZogarty I think the only just course open to a 
 Canadian Court is to decline accepting either the prisoner’s 
 statement or his alleged employer’s avowal of his acts, as con- 
 clusive evidence of the proposition that his conduct was war 
 and not robbery. It should accept the evidence offered as 
 establishing a prima facie case of guilt sufficient to place the 
 prisoner on his trial and all for his defence. The whole burden 
 of proving that the transferring of the money from Ashley’s 
 pocket to that of the prisoner and his friend, does not bear the 
 complexion that men of plain understanding, must under the 
 circumstances, attribute to it, must be thrown upon the prisoner. 
 
 I think I am bound to a treaty so made between my Sov- 
 ereign and her ally in a liberal and just spirit, not laboring with 
 eager astuteness to find flaws or doubtful meanings in its 
 words, or in those of the legal forms required for carrying it 
 into effect. 
 
 We are to regard its avowed object, — the allowing of each 
 country to bring to trial all prisoners charged with the ex- 
 pressed ojafences. Neither of the parties can properly have any 
 desire to prevent such trial, or to shield a possible offender. If 
 the position of the case were reversed, and the prisoner had 
 done the acts complained of in this country, and claimed to be 
 a belligerent against our Sovereign, I think any Canadian 
 judge or magistrate would commit him for trial for robbery^ 
 leaving him to plead his belligerent position at his trial for 
 what it was worth. I have neither the desire nor the right to 
 assume that he will not be fairly tried in the United States. 
 The Treaty is based on the assumption that each country should 
 be trusted with the trial of offences committed within its juris- 
 diction. I think the prisoner should be remanded on the Re- 
 corder’s warrant, which I think is not open to any valid objec- 
 
tion. Had I differed from the result arrived at by the Recorder, 
 
 I should then have to consider a doubt more than once expressed, 
 whether any judge can review his decision.” 
 
 (After reciting the facts, Mr. Justice Wilson proceeds:) 
 
 “ These proceedings, so mean in their inception and so ignoble 
 in their development and termination, we are asked to consider 
 as acts of war, and to accord to the prisoner belligerent rights. 
 What is there in all this which constitutes the act of war ? If 
 the object were to release the prisoners, from all that appears 
 they never were nearer than fourteen miles to Johnson’s Island. 
 Was the seizure of this unarmed boat per se an act of war ♦— 
 for it has been argued that the robbery was merged in the 
 • higher act. The seizure of the boat, for whatever purpose, 
 was one thing, the robbery of Ashley quite another ; and in no 
 way that we see, in furtherance of the design now insisted 
 upon necessary for its accomplishment. But is not the bona 
 fide of the enterprise matters of defence which a jury ought to 
 try 1 Such a trial can only be had where the offence was com- 
 mitted, and we cannot doubt but that justice will be fairly admin- 
 istered. Then wc are told that although the prisoner has no 
 orders to show, authorizing what he did, he has the manifesto 
 of the President of the Confederate States avowing the act and 
 assuming it, and therefore he is not subject to this charge at 
 all. We accord to that Confederacy the rights of a belligerent, 
 as the Unifed States has done from the day it treated the 
 soldiers of the revolted States as prisoners of war ; but there is 
 an obvious distinction between an order to do a belligerent act, 
 and the recognition and avowal of such an act after it has been 
 done. The one is an act of war, the other an act of established 
 government. The one is consistent with what Great Britain 
 acknowledges, the other is not. For us judicially to give 
 effect to the avowal and adoption of this act, would be to recog- 
 nize the existence of the nationality of the Confederate States, 
 which at present our Government refuses to acknowledge. 
 
 Giving for the moment this manifesto its full force, it dis- 
 tinctly disclaims all breaches of neutrality ; but it is clear that 
 this expedition took its departure and shipped its arms from 
 
44 
 
 our port. But does it assume the responsibility of this seizure, 
 and all that was done upon it throughout ? If not, it is neither 
 justification nor excuse. I see no authority for the doing of 
 the act, and as an assumption of what was done, therefore the 
 whole justification fails. Lastly, the attitude of the United States 
 towards us is no concern of ours. Sitting here, whatever they 
 do, while peace exists, and this Treaty is in force, we are bound 
 to give it efiect. We can look with no favor on treachery and 
 fraud, we cannot countenance warfare to be carried on excepl^ 
 on the principles of modern civilization. We must not permit, 
 with the sanction of law, our neutral rights to be invaded, our 
 territory made the base of warlike operations or the refuge 
 from flagrant crimes. Peace is the rule, war the exception of 
 modern times ; equivocal acts must be taken most strongly * 
 against those who, under pretence of war, commit them. For 
 these reasons, I think the prisoner must be remanded on the 
 warrant of the learned Recorder.” 
 
 And for the same reasons so also should the prisoners here 
 be remanded, unless it can be made to appear that we have 
 one set of neutrality laws for Upper Canada, and another and 
 a totally distinct set for Lower Canada. But as this is not pre- 
 tended, the judgment in the Burley case disposes of the ques- 
 tion at issue here, unless indeed your Honor, like the prisoners’ 
 counsel, should be of opinion that your brother Judges, dis- 
 tinguished as they undoubtedly are for judicial attainments of 
 the highest character, have in the Burley matter misunderstood 
 the law, misapplied the facts, and evidenced gross ignorance of 
 our international relations, a conclusion which assuredly does 
 not flow from the premises. 
 
 With these remarks on the Burley case, I will now address 
 myself to another point raised by the prisoners’ counsel, which 
 I undertake to refute by incontrovertible authority, namely, that 
 the prisoners being 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 purpose they have a right to employ ail sorts 
 
of means. “ A strange maxim !” {Yaitel^ B, 3, c. 8, p. 357,) but 
 happily exploded by the bare ideas of honor, confused and 
 indefinite as they are. In civil society, T have a right to pun- 
 ish a slanderer — to cause my property to be restored by him 
 who unjustly detains it ; but shall the means be indifferent ? 
 Nations may do themselves justice, sword in hand, when 
 otherwise refused to them ; shall it be indifferent to human 
 society that they employ odious means, {Ihidy B,3, c. 8, p. 351,) 
 women, children, feeble old men, sick persons, come under the 
 description ot enemies, and we have certain rights over them, 
 inasmuch as they belong to the nation with whom we are at 
 war. But these are enemies who make no resistance and con- 
 sequently we have no right to maltreat their persons or use 
 any violence against them, much less to take away their lives. 
 This is so plain a maxim of justice and humanity, that at pres- 
 ent every nation in the least degree civilized acquiesces in it. 
 The like may be said of the public ministers of religion, of 
 men of letters, and other persons who live remote from mili- 
 tary affairs, (Was not St, Albans remote from military affairs?) 
 At present war is carried on by regular troops ; the people, the 
 peasants, the citizens, take no part in it, and generally have 
 nothing to fear from the sword of the enemy, p. 359,) I 
 
 give then, the name of assassination to a treacherous murder, 
 whether the perpetrators of the deed be subjects of the party 
 whom we cause to be assassinated — or of our own Sovereign. 
 Assassination and poisoning are therefore, contrary to the laws 
 of war, and equally condemned by the law of nature and the 
 consent of all civilized nations. {Ibid, pp. 361, 362.) I cannot 
 conclude this subject of what we have a right to do against the 
 person of the enemy, without speaking a few words concerning 
 the dispositions we ought to preserve towards him. Let us 
 never forget that our enemies are men ; though reduced to the 
 disagreeable necessity of prosecuting our rights by force of arms, 
 let us not divest ourselves of that charity which connects us 
 with all mankind. Thus shall we defend our country’s rights 
 without violating those of human nature. Let our valor pre- 
 serve itself from every stain of cruelty, and the lustre of victory 
 
46 
 
 will not be tarnished by inhuman and brutal actions. p. 
 
 368.) What we have advanced is sufficient to give an idea of 
 the moderation which we ought to observe, even in the most 
 just war, in exerting our right to pillage and ravage the 
 enemy’s country.” 
 
 Except the single case in which there is question of punish- 
 ing an enemy, the whole is reducible to this general rule. All 
 damage done to the enemy unnecessarily ^ every act of hostility 
 which does not tend to procure victory and bring war to a conclu- 
 sion^ is a licentiousness condemned by the Law of nature. (Ibid^ 
 p. 369.) The pillage and destruction of towns, &c., are meas- 
 ures odious and detestable on every occasion when they are put 
 in practice without absolute necessity, or at least very cogent 
 reasons. But as the perpetrators of such outrageous deeds 
 might attempt to palliate them under pretext of deservedly 
 punishing the enemy, be it here observed, that the natural and 
 voluntary law of nations does not allow us to inflict such pun- 
 ishments, except for enormous ofiences against the laws of 
 nations.” 
 
 Soldiers,” says Vattel (B. 3, c. 15, p. 400), ‘^can undertake 
 nothing without the express or tacit command of their officers. 
 They are not to act at their own discretion. Wherefore, with 
 respect to things which are not entrusted to their charge, they 
 (soldiers and officers) may both be considered as private indi- 
 viduals, who are not to undertake anything without orders. 
 The obligation of the military is even more strict, as the mar- 
 tial law expressly forbids acting without orders ; and this 
 discipline is so necessary that it scarcely leaves any room for 
 doubt.” 
 
 These citations, I think it will be admitted, do not bear out 
 my learned friend’s ideas of carrying on war. We will now 
 see what Wheaton says upon this subject (Wheaton, p. 7). 
 « Thus, for instance, on mere general principles, it is lawful to 
 destroy your enemy ; and mere general principles make no 
 great difference as to the manner by which that is to be effected ; 
 but the conventional laws of mankind, which is evidenced 
 
Ji 
 
 \ 
 
 47 
 
 in their practice, does make a distinction, and allows some, 
 and prohibits other modes of destruction ; and a belligerent is 
 bound to confine himself to those modes which the common 
 practice of mankind has employed, and to relinquish those 
 which the same practice has not brought within the ordinary 
 exercise of war, however sanctioned by its principles and pur- 
 poses {[bid, p 588). No use of force is lawful, except so far 
 as it is necessary. A belligerent has therefore no right to take 
 away the lives of those subjects of the enemy whom he can 
 subdue by other means. Those who are actually in arms, and 
 who continue to resist, may be lawfully killed ; but the inha- 
 bitants of the enemy’s country who are not in arms may not 
 be slain, becatise their destruction is not necessary for obtain- 
 ing the just ends of the war. [Was the assassination of Morison 
 at St. Albans by the prisoners necessary for this purpose 1] 
 (Wheaton, pp. 591 to 604). Ail the members of the enemy’s 
 State may lawfully be treated as enemies in a public war ; 
 but it does not therefore follow that all these enemies may be 
 lawfully treated alike. No use of force against an enemy is 
 lawful unless it is necessary to accomplish the purposes of the 
 war. The persons of the Sovereign and his family, the mem- 
 bers of the Civil Government, women and children, cultivators 
 of the earth, artisans, laborers, merchants, men of science and 
 letters, and generally all other public or private individuals 
 engaged in the ordinary civil pursuits of life, are by the custom 
 of civilized notions, founded upon the foregoing j rinciple, ex- 
 empted from the direct efiect of military operations, unless 
 actually taken in arms, or guilty of some misconduct in viola- 
 tion of the usages of war, by which they forfeit their immunity. 
 Private property on land is also exempt from confiscation, with 
 the exception of such as may become booty in special cases, 
 when taken from enemies in the field {Ibid, p. 626). The 
 effect of a state of war lawfully declared to exist is to place 
 all the subjects of each belligerent power in a state of mutual 
 hostility. But the usage of nations has modified this maxim, 
 by legaliziag such acts of hostility only as are comnutud by those 
 who are authorized by the express or implied command of the 
 
48 
 
 State. Such are the regularly commissioned naval and mili- 
 tary, forces of the nation. The horrors of war would indeed 
 be greatly aggravated if every individual of the belligerent 
 States was allowed to plunder and slay indiscriminately the 
 enemy’s subjects, without being in any manner accountable 
 for his conduct. Hence it is that in land wars irregular bands 
 of marauders are liable to be treated as lawless banditti, not 
 entitled to the protection of the mitigated usages of war as 
 practised by civilized nations/” 
 
 War (3 Phillimore, p. 100,) is not to be considered as an in- 
 dulgence of blind passions, but as an act of deliberate reason ; 
 and 8S Lord Bacon says, ‘ no massacre or confusion, but the 
 highest trial of right.’ Wanton cruelty exercised towards the 
 enemy’s subjects is therefore, according to the principles and 
 practice of Christian nations, unjustifiable and illegal. — {Ihid.y 
 p. 103.) Reason, morality and religion alike commend to the 
 understanding and the conscience of nations, that cardinal 
 principle of the law of war, to which reference has already 
 been made, and by which it is decided, ‘that everything is 
 not lawful against an enemy,’ but only those things which are 
 essential to the vigorous prosecution and speedy termination of 
 the war. The conqueror, {Ih. p, 145,) is obliged by the laws 
 of just war, to spare those who lay down their arms, or who 
 are helpless. To put such to death is to commit murder. And 
 those who commit zt^ ought to die by the hand of the hangman^ 
 and not of the soldier. Bands of marauders acting without 
 the autliority of the Sovereign or the order of the Military 
 commander, have no claim to the treatment of pris oners of 
 war.^’ 
 
 The same doctrine is maintained by every modern 
 writer upon the laws of civilized warfare.’ In the case of 
 Talbot vs. JansoUy decided in the Supreme Court of the United 
 States, and reported in (1 Curtis, p. 139,) the principle sup- 
 ported by the authorities I have just quoted is well and clearly 
 laid down in a judgment rendered by that high tribunal, from 
 which I take the following extract.— “ That by a due consider- 
 ation of the law of nations, whatever opinions might have 
 
prevailed formerly to the contrary, no hostilities of any kind 
 except in necessary self-defence, can lawfully be practised by 
 one individual of a nation, against an individual of any other 
 nation at enmity with it, but in virtue of some public authority. 
 War is instituted for national purposes, and directed to National 
 objects ; and each individual on both sides is engaged in it as 
 a member of the society to which he belongs, not from motives 
 of personal malignity and ill will. He is not to fiy like a 
 tiger upon his prey^ the moment he sees an individual of his 
 enemy before him. Such savage notions I believe obtained 
 formerly — thank God more rational ones have succeeded. Even 
 in the case of one. enemy against another enemy, therefore, 
 there is no color of justification for any offensive hostile act, 
 unless it be authorized by some act of the Government giving 
 the public constitutional sanction to it.^’ 
 
 In the case of Little vs. Barreme, also decided in the Supreme, 
 Court of the United States (1, Curtis^ p. 465), Chief Justice 
 Marshall, admitted by my learned friends to be a high 
 authority, held that instructions from the President to the 
 commander of a public armed vessel of the United States, 
 to do an illegal act, do not justify the officer in doing it, 
 nor so far excuse him as to exempt him from paying 
 damages. In rendering judgment. Chief Justice Marshall 
 said : I confess the first bias of my mind was very strong in 
 
 favor of the opinion that though the instructions of the Execu- 
 tive could not give a right, they might yet excuse from dama- 
 ges. I was much inclined to think that a distinction ought to 
 be taken between acts of civil and those of military officers ; 
 and between proceedings in the body of the country and those 
 on the high seas. That implicit obedience which military 
 men usually pay to the orders of their superiors, which indeed 
 is indispensably necessary to every military system, appeared 
 to me strongly to imply the principle that those orders, if not 
 to do a prohibited act, ought to justify the person whose general 
 duty it is to obey them, and who is placed by the laws of his 
 country in a situation which in general retjuires that he should 
 obey them. I was strongly inclined to think, that where, in 
 
consequence of orders from the legitimate authority, a vessel is 
 seized with the pure intention, the claim of the injured party 
 for damages would be against that Government from which 
 the orders proceeded, and would be a proper subject for nego- 
 ciation. But I have been convinced that I was mistaken, and 
 1 have receded from this first opinion. I acquiesce in that of 
 my brethren, which is, that the imtructions cannot change the 
 nature of the transaction^ or legalize an act, which without those 
 instructions, would have been a •plain, trespass^ 
 
 These authorities I confidently submit to your Honor’s judg- 
 ment, and in refutation of the absurd and happily exploded 
 maxim, that every injury inflicted by one. enemy against the 
 person of another enemy in time of war, and under pretence 
 of war, is justifiable. 
 
 The next case to which I shall refer is that of McLeod, so 
 much relied on by my learned friends, and with it I intend to 
 close my observations upon this branch of the case. 
 
 McLeod, it is well known, was arrested in the State of New 
 York, in the month of November, in the year 1840, because of 
 his supposed participation in the destruction of the steamer 
 Caroline, and the killing of one Durfee. Now, the circum- 
 stances under which these acts were committed were very 
 different indeed from those which we are investigating. Be- 
 tween the burning of the Caroline, the killing of Durfee, and 
 the robbery of Breck, and of the Banks, the murder of Morri- 
 son, and the wounding of several other persons at St. Albans 
 by the prisoners, upon the 19th day of October last, there is not 
 the least analogy, absolutely none whatever. The destruction 
 of the Caroline was an act of public force, done by the com- 
 mand of the British Government, and all that McLeod did in 
 it, if anything, he did by the express command of his superior 
 officer, and in compliance with the order of his own Govern- 
 ment. 
 
 The Caroline was destroyed in December, 1887, and from 
 the published accounts of the transaction, we gather, that af- 
 ter the rebellion which, during that year had broken out, had 
 been suppressed, a small band of Canadian refugees, who had 
 
51 
 
 t&ksn sh6lt6r in tli6 St8,t6 of N©w Yorkj formed n league with 
 a number of other evil-disposed persons, for the purpose of in- 
 vading the British territory, not to join a party engaged in civil 
 war, because civil war at that time in Canada there was none 
 but in order to commit within British territory the crimes of 
 robbery, arson, and murder. After some days’ preparation, 
 these people proceeded to invade and occupy Navy Island, and 
 part of the British territory ; and having engaged the steamboat 
 Caroline^ vfhiQhf for their special service was cut out of the 
 ice in which she had been enclosed in the port of Buffalo, 
 they had used her for the purpose of bringing over to Navy 
 Island, from the United States territory, men, arms, ammu- 
 nition, stores and provisions. In consequence of these pre- 
 parations, the British authorities stationed a military force 
 at Chippewa, to repel the threatened invasion, and to de- 
 fend Her Majesty’s territory. The commander of that fort, 
 seeing that the Caroline was used as a means of mpply and re- 
 inforcement for the invaders, who had occupied Navy Island, 
 judged that the capture and destruction of that vessel would 
 prevent supplies and reinforcements from passing over to the 
 Island, and would, moreover, deprive the force on the Island 
 of the means of passing over to the British territory on the 
 mainland. Accordingly, on the 29th of December. 1837, an 
 expedition of seven small boats, and sixty-three armed men, 
 was fitted out at Chippewa, by the direction of Col. McNab, 
 (who was lawfully in command of Her Majesty’s forces at the 
 last named place, and vested with full authority to do so,) and 
 commanded to take the said steamboat by force, whereVer 
 found, and to bring her in or destroy her. By this expedition, 
 in which McLeod was engaged, the Caroline was captured and 
 destroyed, and in that capture Durfee lost his life. Hence 
 the subsequent arrest of McLeod. No sooner, however, was 
 this arrest made known, than his immediate liberation was 
 demanded by the British Government. The grounds, said Mr. 
 Fox, (the then British Minister,) addressing himself to Mr. 
 Webster, ‘‘upon which the British Government make this de- 
 mand, are these: that the transaction, on account of which 
 
52 
 
 McLeod has been arrested, and is to be put upon his trial, was 
 a transaction of a public character, planned and executed by 
 persons duly empowered by Her Majesty’s Colonial authorities, 
 to take any steps, and to do any acts, which might be neces- 
 sary for the defence of Her Majesty’s territories, and for the 
 protection of Her Majesty’s subjects; and that consequently 
 those subjects of Her Majesty who engaged in that transac- 
 tion, were performing an act of public duty, for which they 
 cannot be made personally and individually answerable to the 
 laws and tribunals of any foreign country.’^ 
 
 To this demand, Mr. Webster replied in these words : — The 
 Government of the United States entertains no doubt that, after 
 this avowal of the transaction, as a public transaction, author- 
 ized and undertaken by the British authorities, individuals 
 concerned in it ought not, by the principles of public law, and the 
 general usage of civilized states, to be holden personally respon- 
 sible in the ordinary tribunals of law, for their participation in 
 it, and the President presumes that it can hardly be necessary 
 to say that the American people, not distrustful of their ability 
 to redress public wrongs, by public means, cannot desire the 
 punishment of individuals, when the act complained of is de- 
 clared to have been an act of the Government itself.” 
 
 After this correspondence, an application was made for the 
 the release of McLeod, supported by the law officers of the 
 Government of the United States ; but. Judge Co wen, to whom 
 it was made, refused it, upon the ground, that the avowal of 
 McLeod’s act by the British Government, did not, and could 
 not, legalize that which according to his views was a crime, 
 before its avowal. He held moreover, that an indictment for 
 murder having been returned against McLeod, the Court could 
 not by the recognition of the British Government of his 
 (McLeod’s) deeds, be ousted of its jurisdiction to try the offence. 
 McLeod was therefore brought to trial, and after a full hearing 
 of the case, acquitted. Subsequently the opinion of Judge 
 Cowen was reviewed by Judge Tallmadge, (26, Wendell^ p. 
 663,) who held that as the British Government had not only 
 approved, but ordered the destruction of the Caroline, daring 
 
63 
 
 which Durfee was killed, McLeod, was not individually an- 
 swerable for the consequences resulting therefrom. From the 
 moment that it was sanctioned and avowed by England, it be- 
 came a national question, and one to be determined, not, in 
 the ordinary Municipal tribunals of the States ; but in the high 
 political Courts of Washington and St. James. 
 
 Where then is the analogy between this case and that of 
 Young and his accomplices? McLeod, in obedience to the 
 command of his superior officer, performed a soldierly act, one 
 which was deemed necessary for the defence of his country, 
 and which was approved by his Sovereign ; whereas Young 
 and his associates, without any authority, performed the very 
 contrary of a military act — one, which no man with any regard 
 fur truth can pretend was justified by the laws of self-defence or 
 self-preservation. McLeod aided in the destruction ofa steamer, 
 employed in carrying aid to the invaders of his country, 
 Young and his party devoted themselves to the robbery and 
 murder of private citizens. And yet we are told, that there is 
 great analogy between both acts — the capture of the Caroline ^ 
 and the raid at St. Albans. If there is, I am compelled to say. 
 I do not see the resemblance. 
 
 So far, your Honor will have perceived, that I have argued 
 the case with no more than a passing reference to the speeches 
 made by my learned opponents — and the reason is, that in my 
 opinion, they have little or no application to the statement 
 of facts before us. Mr. Lafiamme, it is true, stated in his 
 address of yesterdav, that two new and important facts were 
 brought to light since your Honor’s illness — the first was the 
 despatch of Earl Russell, in answer to Mr. Adams, touching 
 the discharge of the persons who rose upon the officers and 
 crew of the Roanoke, and destroyed that vessel. Well my an- 
 swer to this new discovery is this: — that iu the case of the 
 Roanoke^ there was, to commence with, no judicial investi- 
 gation. Secondly : — That Earl Russell stated in reply to Mr. 
 Adams, that there was not sufficient evidence to detain the 
 persons complained of, and lastly, that the Commander of the 
 party was duly commissioned and entitled to the recognition 
 
54 
 
 of a belligerent. Besides, his act was not one having for its 
 object, private pillage. In addition to which, I must remind 
 the gentleman that there is a wide distinction made between 
 maritime warfare and war upon land — between the taking of 
 private property at sea, and the taking of it on land. The sea 
 being the common highway of the world; belligerents when 
 they there engage each other, have equal rights and privileges. 
 (WheatoHy p. 626,) speaking of maritime warfare, says The 
 progress of civilization has slowly, but constantly tended to 
 soften the extreme severity of the ^ operations of war by land ; 
 but it still remains unrelaxed in respect to maritime warfare, in 
 which the private property of the enemy taken at sea or afloat 
 in port, is indiscriminately liable to capture and confiscation. 
 This inequality in the operation of the laws of war, by land 
 and by sea, has been justified by alleging the usage of consider- 
 ing private property, when captured in cities taken by storm as 
 booty. Whereas, the object of maritime wars is the destruc- 
 tion of the enemy^s commerce and navigation, the sources and 
 sinews of his naval power, which object can only be attained 
 by the capture and confiscation of private property. 
 
 The second new fact, brought to light by the learned coun- 
 sel (Mr. Laflamme), amounts simply to this : — That the pri- 
 soners had no criminal intent in all that they did at St. Albans. 
 Now, of all the absurd and preposterous propositions set up by 
 the prisoners^ advocates, none, surely, for reckless assertion, 
 approaches to this last one. No animus furandi ! Pray, what 
 object had the prisoners in going to St. Albans? Was it not 
 to steal? Shall it be said, or can it be believed, that when 
 they robbed Breck they did not intend doing so ? Can it be 
 reasonably pretended, that when they stole from the Banks 
 $220,000, that they did not mean to do that either? Shall it 
 be said, that when they set to work to steal horses, as they 
 actually did, to enable them the more readily to escape with 
 their plunder, that they did not know what they were about? 
 Can it be believed, that when Young and his party murdered 
 Morrison, shot Huntingdon, and wounded several other citizens 
 of St. Albans, they had no criminal intent ? Truly, it is painful 
 
55 
 
 to be obliged to listen to, and to answer such unfounded argu- 
 ments ; but the real fact is, (and it is not a new one), that it 
 would seem as if we met here to waste time, and, as I have 
 before stated, to trifle with, instead of honestly to fulfill, our 
 Treaty engagements. Young and his accomplices had no 
 criminal intent in their St. Albans operations! If this be true, 
 why is it that up to this hour they have not made restitution ? 
 What have they done with the stolen money ? If they are 
 the honest, upright men their 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. Fifty thousand dollars — the sum voted by 
 Parliament to be refunded to the St. Albans’ Banks, in lieu of 
 the amount, a part of the proceeds of their robbery, taken from 
 Bennet H. Young Co., in this Province, and subsequently, 
 by an act of fraud, restored to them — is rather too much to pay 
 for the honor of their acquaintance. No writer, says Mr. 
 Laflamme, has yet ventured to say that the prisoners 
 should be extradited, by reason of the crimes charged against 
 them. Again, I say, he is mistaken. With very few excep- 
 tions, every newspaper published upon this and the other side 
 of the Atlantic, has denounced the savage deeds of his clients. 
 For instance, the London Post (Government organ, Dec. 29), 
 in a lengthy article upon the subject, says : — That these 
 “raiders” really come within the terms of the Extradition 
 Treaty^ thei'e can, we conceive^ 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 recognized belligerents, whereas the 
 articles of the Treaty spoke only of ordinary depredations. 
 Such a pretence will not hold for a moment. The Federals, 
 indeed, quite as much as ourselves, have recognized the Con- 
 federates to be belligerents, and they have invariably acknow- 
 ledged them to be entitled to the rights of war as against the 
 Federals themselves ; but war is only war when it is waged 
 either from the open sea^ or from territory belonging to the attack^ 
 ing belligerents,, If, in the course of the recent Danish war, 
 
56 
 
 Prussians had secreted themselves on the shores of Norfolk 
 with the view of making an attack upon Jutlandj or vice vctscl^ 
 Danes had proposed an attack upon Prussian seaports from Yar- 
 mouth or Hull, we should certainly have arrested them without 
 any special treaty of extradition.’^ 
 
 The London News (29th Dec.), referring to the St. Albans 
 raid, says: — We are bound to show the example of doing as 
 we would be done by, and as we have in former times uttered 
 keen remonstrances, and even resorted to actual force, when 
 an enemy used neutral soil to prepare machinations against 
 us, it is imperative that we should now vindicate our fair deal- 
 ing and maintain our friendly character, by prohibiting abso- 
 lutely the abuse of our protection for the purpose of directing 
 treacherous violence against the inhabitants of a bordering and 
 allied State. We should expect France to do thus much for 
 us if we were unhappily at war with America, and Americans 
 plotted and directed from Calais expeditions to sack Brighton 
 or burn Hastings. And it is clear that what we should regard 
 as the duty of France in such a case would be still more her 
 duty if the war were made upon our seaboard, not by a foreign 
 nation, but by our own subjects in revolt. This is the Ameri- 
 can case at present, and there must be no hesitation in our 
 doing to them the justice which we should look for from 
 every friendly power if the case were our own.’' 
 
 The London Morning Star, we also find is not less explicit. 
 His opinion of the Raiders’ conduct has been expressed in 
 these words : — We are quite satisfied that the Canadian Exe- 
 cutive, equally with the Home Government, desire to make 
 our neutrality as perfect as possible, and as the uncertainty of 
 law is proverbial, the Colonial authorities ought to adopt execu- 
 tive measures to maintain the tranquility of the borders, by 
 their own police and by the^miiitary, in place of relying upon 
 their ability to arrest and punish offenders after a raid has been 
 committed. They may be sure that a repetition of these raids 
 will cause serious complications, involving an enormous expen- 
 diture in warlike preparations, if they do not create such a 
 feeling of irritation as to render the maintenance of peace 
 
57 
 
 impossible. The boundary which affords an easy protection 
 to the Confederate spoilers returning with the contents of bank 
 safes or traders* bills, opposes as little difficulty to a pursuing 
 party ; and it would be vain to expect exasperated people who 
 had been robbed by banditti from Canada, to stop short at the 
 visionary line, and commence a meditation upon international 
 law. If effective measures are not adopted to compel our neu- 
 trality to be respected by the Confederate refugees, that neu- 
 trality will not be respected by the other belligerent ; mutual 
 irritation will beget exasperation, and exasperation will beget 
 war. Such a result will be rather too high a price to pay for 
 the honor of being selected by the Confederate skedaddlers 
 from their own country, as the base from which to sally forth 
 upon little robbing expeditions, which they are more inclined 
 to adopt than to enter into the regular military service. Canada, 
 governed as it is by the wise maxims of English policy, will 
 ever give a free and safe shelter to political exiles, whatever 
 may be their principles or their country, but the first duty of 
 these exiles is to respect the laws and neutrality of the land 
 in which they seek an asylum, and not to attempt to drag that 
 country into war for a cause in which it has no interest, and 
 with which the bulk of the population have no sympathy. It 
 is accordingly the duty of the Canadian Executive to compel the 
 Confederates to cease these exasperating raids, and for this 
 purpose to place the necessary force at the frontier, and to take 
 such other measures as may be requisite to maintain the neu- 
 trality which the nation has unanimously adopted. It will be 
 better to do this, even at considerable expense, than to run the 
 risk of the calamities with which a repetition of such raids 
 must necessarily threaten the prosperity of the colony. 
 
 These extracts from leading English papers indicate that the 
 people of England have not much sympathy with the St. 
 Albans raiders. At any rate, as this case is not, I hope, to 
 be determined by in-door or out-door pressure, I will not 
 further trespass upon the time of the Court, by referring to 
 what has been said or written upon the subject in Canada or 
 elsewhere. 
 
58 
 
 Before, however, closing my argument, I desire to bring un- % 
 
 der your Honor’s notice the fact, that during last November iii 
 
 an attempt was made by a few Southern men to burn down $ 
 
 the City of New York. As we all know, this attempt failed. (oi 
 
 But had it succeeded, it would certainly have entailed irrepar- rf: 
 
 able loss upon the people of that City. In fact, it would have le 
 
 proved a great misfortune — a severe blow to every State in n 
 
 the Union. We also know that some of the persons engaged > 
 
 and pledged to the commission of this diabolical deed, were ar- < 3 ^ 
 
 rested, tried, and found guilty for their participation in it. But, ^ 
 
 notwithstanding that the destruction of New York would, if kj; 
 
 carried out according to the plans of the Southern incendia- | 
 
 ries, have materially affected the prestige, if not to a certain | 
 
 extent the resources of the North, I have yet to learn that ju 
 
 any of these prisoners followed the example of the St. Albans 
 raiders, and set up as a justification of their crime, that it was tii 
 
 an act of military hostility, and one which by the laws of war ^ 
 
 they were permitted to commit against their enemy. No, the ijj 
 
 truth is, it was denounced everywhere, and in no place more n, 
 
 indignantly than in the Capital of the Rebellious States. 
 
 But, from what is transpiring around us here in Canada, ij, 
 
 it would really seem, that if the New York incendiaries 
 had been so fortunate as to have reached Montreal, and be jjj 
 
 here arrested, there would not have been found wanting j]j 
 
 those who would proclaim them belligerents, entitled, by ^ 
 
 the very greatness of their guilt, to be ranked among ^ 
 
 the heroes of the war. Why any number of our citizens ^ 
 
 should take a view so hostile to the interests of the 
 United States, I know not. We are, and must continue to ^ 
 
 be their next door neighbors. Socially and commercially we 
 are intimately connected. And surely it is not wise, it is not ^ 
 
 prudent in us, who have so much to gain by maintaining un- 
 broken the friendly ties that unite us to the great Republic, ^ 
 
 rudely, nay violently, to tear to pieces the bond of friendship ^ 
 
 that has for so many years secured to us the blessings of peace 
 and the enjoyment of an uninterrupted reign of prosperity. I be- ^ 
 
 seech your Honor to reflect well and seriously upon what you 
 
59 
 
 must know will be the inevitable consequence of the prisoners^ 
 discharge. Remember, if you set them at liberty, you justify 
 so far as you have it in your power, the atrocious crimes 
 committed at St. Albans ; and again open the door to a repetition 
 of similar ofiences. Discharge those prisoners, and others will 
 be found wicked enough to imitate their example. And what 
 will be the result? Can you suppose for a moment that the 
 United States will tamely submit to see their citizens on the 
 frontier, robbed and murdered by Southern desperadoes, issu^ 
 ing from, and protected under the laws of Canada, without 
 striking a blow. Would we quietly submit to such outrage under 
 like circumstances ? Suppose, for example, that Ireland was 
 in a state of rebellion against England, that twenty Irishmen 
 during its continuance had crossed the Atlantic, had found 
 their way to St. Albans, and from there had secretly introduced 
 themselves into the city of Montreal, had robbed our banks, 
 shot down our citizens, and then fled with their plunder to St. 
 Albans. What, I ask, would the law abiding people of Canada 
 say, if, to a demand for their extradition as robbers and 
 murderers, the United States replied: That the perpetrators of 
 these crimes committed them without criminal inieent — that 
 the state of war existing at the time between England and 
 Ireland, sanctified their proceedings, and that as the accused 
 claimed to be belligerents and asserted that they murdered 
 and robbed the good j>eople of Montreal, in the name of rebel- 
 lious Ireland, all further enquiry must cease, the Treaty never 
 having contemplated the prevention of such gallant and patri- 
 otic achievments. Would we, I ask, rest content with such 
 answer to our demand. Or would we not, on the contrary, 
 regard with abhorrence, nay, with the most profound con- 
 tempt, the people and the judiciary of the country who enter- 
 tained such perverted views of national obligations — who sanc- 
 tioned such infamous outrages ? I would also beg to remind 
 your Honor that although you have supreme control over this 
 application for extradition, and may dispose of it in any manner 
 you please, nevertheless, the expressed will of the Govern- 
 ment ought not, in a matter of this great national and 
 
60 
 
 political importance, to be entirely ignored. If may be ' 
 said, and it is undoubtedly true, that the Judges of Canada 
 are .removed far above and beyond all Government in- 
 fluence, where it is to be devoutly hoped they will ever and 
 always remain. But as I have before stated, it is, and I say it 
 in all humility, the duty of the Judge, particularly in mat- 
 ters affecting our political relations with foreign States, not 
 to embarrass the Government by an unwise or injudicious 
 application of the laws made and intended to preserve 
 the national honor and the good faith of the citizens. 
 I know that for the means adopted by the Legislature 
 of this Province to guard against a repetition from within 
 our lines, of St. Albans raids, the Government has been un- 
 sparingly abused. But do not the authorities which Ij have 
 had the honor to cite — authorities recognized as laws binding 
 upon all civilized nations, fully sustained the precautionary 
 measures so taken 1 Nay, I venture to go a step further, and say 
 that our Government is entitled to the everlasting gratitude 
 of the country, for the prompt and efiicient means they 
 have taken to ensure the maintenance of our neutrality laws, 
 and the inviolability of Canadian territory. 
 
 With these remarks I must bring my argument to a close, 
 and leave to my learned associates the completion of the task^ 
 my part of which, I greatly fear, I have but very imperfectly 
 performed. To your Honor’s sense of justice I commit the 
 case so far as I am concerned, expecting from you whose Judi- 
 cial attainments are of so high a character, a judgment that ' 
 will reflect honor upon the Judiciary of the country, and 
 redeem us from the imputation of having so far, failed to fulfil ' 
 our Treaty engagements. In the words of the eminent Judge ' 
 Jay, let us be faithful to all — kind to all — but let us be just’ 
 to ourselves.