2606.
PUBLIC RECORD OFFICE
C.O. 885
Reference :-
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
:.
MY LORD,
No. 314.
(NEW BRUNSWICK.)
LAW OFFICERS to FOREIGN OFFICE.
Lincoln's Inn, March 16, 1865.
WE are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 15th March instant, stating that, with reference to his letter of the 9th instant, he was directed by your Lordship to transmit to us a letter from the Colonial March 14, Office enclosing a copy of a Despatch from the Lieutenant-Governor of New Brunswick 1865. reporting that he had signed the warrant for the apprehension of such of the St. Alban's raiders as might be in the Province, and adverting to the report of the provincial Solicitor General pointing out defects in the requisition from Mr. Seward on which the warrant was issued, and to request that we would take this matter into our immediate consideration and favour your Lordship with our opinion thereupon in time to admit of instructions being addressed by Mr. Secretary Cardwell to the Lieutenant- Governor of New Brunswick by the mail of Saturday next.
Mr. Hammond was also pleased to add that no copy of the warrant had yet been received by Her Majesty's Government, and that the requisition mentioned by the provincial Solicitor General is to be found at page 82 of the papers (North America, No. 1) laid before Parliament this session.
In obedience to your Lordship's commands we have taken this matter into our con- sideration, and have the honour to
Report
That it does not appear to us to be expressly required, either by the terms of the treaty of 9th August 1842 or under the statute 6 & 7 Vict. c. 76., that the requisition to be made by the authority of the United States for the delivery of any person charged with any of the offences therein specified should be in any particular form, or that it should state upon the face of it the facts necessary to constitute the alleged offence, or the time when such offence was committed. All that appears to be expressly required is that it should be, in substance, "a requisition for the delivery "of any person charged with the crime of murder, &c. committed within the juria- "diction of the United States of America who shall be found within the territories "of Her Majesty." If indeed the Governor's warrant issued upon this requisition were itself sufficient to authorise the apprehension of the alleged offender it might be reasonable and proper to construe these general words as involving the specifica- tion of everything requisite to show that such an offence has really been committed. But inasmuch as no step can be taken under the Governor's warrant without the production before a magistrate of "auch evidence as according to the laws of that part of Her Majesty's dominions would justify the apprehension and committal "for trial of the person so accused if the crime of which he or she shall be so accused "had been there committed," it does not seem to us that the purposes of justice necessarily require any such exactness in the statement of the charge on the face of the requisition; and, the statute itself being silent on the subject, it seems to us to be the better opinion that the magistrate, or the judges on habeas corpus, would not be authorised to hold the Governor's warrant invalid for any defect in the specification of the facts necessary to constitute the alleged offence on the face of the requisition if, before the magistrate himself, sufficient evidence of all these circumstances were produced, and if the magistrate's warrant for the apprehension of the offender were itself in proper form.
We are therefore disposed to differ in this respect from the Solicitor General of New Brunswick, and to think that Mr. Seward's requisition addressed to the Governor of New Brunswick, through Mr. Burnley, on the 19th December last, ought not to be deemed insufficient to support the Governor's warrant issued unter the same, merely on the ground that it does not name the persons on whom or the time at which the alleged offences of murder and robbery, &c. were committed.
We must, however, add that we think it highly inexpedient to depart from the usage, which (we believe) has hitherto prevailed, of making these requisitions in a more formal manner, and of accompanying them with depositions sufficient to satisfy the
0162/8.-491. 25.-2/86.