PUBLIC RECORD OFFICE
Reference :-
TTLEC.O.
لسلسال
885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
Governor before he issues his warrant that the case is prima facie within the Extradi- tion Treaty.
If
The 2nd section of the statute contemplates (if it does not by implication require) such depositions, which (we understand) were not offered in the present case. under these circumstances the charge against the St. Alban's raiders should eventually miscarry in New Brunswick, we cannot but think that the responsibility of such mis- carriage will rest with the authorities of the United States.
The Right Hon. the Earl Russell, K.G.
&c.
&c.
&o.
We have, &c.
(Signed)
ROUNDELL PALMER. R. P. COLLIER. ROBERT PHILLIMORE.
J
2620.
No. 315.
(CANADA.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Lincoln's Inn, March 16, 1865. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 27th ultimo, stating that, with reference to the report of the Attorney and Solicitor General of the 25th ultimo, he was directed by your Lordship to transmit for such observations as we may have to offer thereupon a letter from the Colonial Office enclosing copies of the judgments delivered by the Judges in Canada in the case of Bennett Burley, together with copies of other legal proceedings in the matter.
In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to
Report
That although this is a case of difficulty, we are unable to say that the decision of the Canadian Judges was incorrect or that Burley was not rightly delivered up to the United States authorities under the Extradition Treaty. We understand the Canadian Judges to have proceeded upon the ground that under the Ashburton Treaty and the statutes for carrying it into effect extradition was due if such evidence of criminality was given as according to the laws of Canada** would justify the prisoner's apprehension and committal for trial" if the alleged offence had been committed in Canada, and that the duty of the magistrate and of the Judges on Habeas Corpus was not to discharge the office of a jury upon the trial, but simply to inquire whether a sufficient case was made on which (if the act had been done in Canada) the prisoner might properly have been committed for trial. We think this view is correct, and it appears to us that in weighing the effect of the evidence for this purpose the Canadian Judges fairly followed the example set them by the Court of Queen's Bench in this country when examining the effect of the evidence in the somewhat similar case of Timan (24th and 25th May 1864), to which 10. they refer.
We think it unnecessary to repeat the observations made by the Canadian Judges, or their comparison of the acts which were proved to have been done by the prisoner, with the terms of the authority under which (as set forth in the Proclamation of President Davis) it was sought to ascribe to them a belligerent character. We think there was great force in the observation that what is said to have been authorised was not attempted, and that what was done does not seem to have been authorised. The seizure of a mer- chant vessel engaged in her usual peaceable occupation of carrying goods and passengers between the American and British borders of Lake Erie, and the abstraction of money from the person of one of the officers of that vessel, effected by a natural-born British subject previously residing as a civilian in the United States, by the aid of arms and a party of men taken on board from British territory in British waters, aro not acts which, consistently with the observance in good faith of the Extradition Treaty, can be dealt with in any way more favourable to the parties concerned in them than that which strict law demands, and upon a question of this kind, turning upon the effect of such evidence as that which was given, the decision of the Canadian Judges ought in our opinion to be held conclusive.
It must not, however, be supposed, that the decision arrived at in this case would rule tho question whether the extradition of Burley would have beon justified if he had taken refuge in British territory after an attack made under the warrant of his commission upon the United States war steamer " Michigan" or upon the forces in Johnston's Island.
The Earl Russell, K.G.
We have, &c.
(Signed)
ROUNDELL PALMER.
R. P. COLLIER. ROBERT PHILLIMORE.
TAW Timex Reporia U.. p. 409.
&c.
&c.
16273.-482. 23.-2/86.