1065.
No. 304.
(Canada.)
PUBLIC RECORD OFFICE
| | | | |/ | | | | | | | | | |
Reference :-
C.O. 885
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Lincoln's Inn, January 31, 1865. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 14th instant, stating that with reference to that part of our report of the 13th ultimo respecting the St. Albans raiders in which we stated that, "Lord Monck "should be instructed to take the opinion of his legal advisers whether upon the " evidence and other information in possession of the Canadian Government these
K
K
persons may not properly be put upon their trial on a charge of misprision and violation of the Royal Prerogative by levying war from Her Majesty's Dominions upon a friendly Power," he was directed by your Lordship to transmit to us, together with the previous correspondence and depositions, a letter from the Colonial Office and its enclosures, from which we should see that on the 29th of December the Canadian Attorney and Solicitor General reported to Lord Monck that they had failed to find "in "the evidence anything to justify the arrest of the said parties for the violation of the "neutrality law or of any law of Canada," and Mr. Hammond was to request that we would take the same into consideration and furnish your Lordship with an explanation as to our views on the matter.
We are also honoured with Mr. Hammond's further letter of the 14th instant, trans- mitting the accompanying Despatch from Mr. Burnley enclosing with other documents a report of the proceedings before Judge Coursal in the case of the St. Albans raid, and requesting that we would furnish your Lordship with our opinion as to the ground on which the prisoners were discharged.
In obedience to your Lordship's commands we have taken these papers into conside- ration, and have the honour to
Report
That wo agree with the opinion of the Canadian Law Officers that there was nothing in the evidence produced before Mr. Coursal to justify the arrest of the parties whose extradition was demanded, or any of them, for the violation of any Imperial or other law in force in Canada. The depositions before Mr. Coursal were all exclusively directed to the proof of acts, alleged to be criminal, done at St. Albana in the United States. It was not the object of the prosecutors to prove any offence (if any had been committed) against the laws of Canada, and no evidence was given of any act whatever done in Canada (except the arrests of the prisoners after their return from St. Albans), nor was any admission which could supply the want of such evidence made by the prisoners themselves.
were
It does not so much as appear from any part of this evidence that the "raiders ever in Canada before this attack upon the Banks, &c. at St. Albans, much less that they had organised any military expedition there, or had proceeded from thence into the United States for the purpose of invading or making war upon the latter country.
We entertain no doubt (although direct authority applicable to the precise case may not be found in the books) that it is a misprision and a high misdemeanor at common law for any person within the Queen's dominions (whether owing to Her Majesty a permanent or only a temporary allegiance) to conspire to invade from those dominions and make war upon the territories of a neighbouring friendly Power with whom Her Majesty is at peace, especially when Her Majesty has by Her Royal Procla- mation declared Her royal intention to be neutral in a war in which that friendly Power is engaged, and has commanded and warned all Her subjects to abstain from taking any part in that war.
4
"
"The power," says Sir Matthew Hale (1 P.C., 159), " of making war or peace is inter jura summum Imperia, and in England is lodged singly in the King,” Sergeant Hawkins (1 P.C., cap 6, parts 2 and 3) says, "It is also a high crime to disobey the King's "lawful commands or prohibitions," (of which he gives several examples) “and all contempts against the King's person or government are very highly criminal, and punishable with fine and imprisonment, &c.," adding that "it is generally obvious to common sense in what cases, and to what degree, a man is guilty of this offence, and it "would be endless to enumerate all the particulars."
C
16278.-484.
[5-2/66.
• No. 289.
10
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO