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2836.

PUBLIC RECORD OFFICE

Reference :-

TILLC.O.

· 885

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH—NOT TO

No. 243.

(NEW BRUNSWICK.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, March 23, 1864. We are honoured with your Lordship's commanda, signified in Mr. Hammond's letter of the 19th March inst., stating that he was directed by your Lordship to transmit to us, for our immediate consideration, a letter and its enclosures from the Colonial Office, respecting some doubt which has been raised in New Brunswick respecting the manner in which the parties concerned in carrying off the " Chesapeake❞ should be dealt with, and to request that we would take these papers into immediate consideration, and report to your Lordship what instructions should be sent to the Governor of New Brunswick on the subject.

In obedience to your Lordship's commands, we have taken these papers into con- sideration, and have the honour to

Report

"or their

That (1.) We think the Lieutenant-Governor of New Brunswick is mistaken in supposing that any allegation or proof of the issue of a warrant in the United States for the apprehension of the persons whose extradition is demanded is either required or contemplated by the Ashburton Treaty (6 Hertslet, 859, 860) or by the Imperial Statute (ibid. 862). In the 10th Article of the treaty we cannot discover anything to that effect; the delivery is to be "upon requisition" by the United States, ministers, officers, or authorities, made"; within which words the requisition of the Consul, acting under the authority of his Government (whether that authority may be proved antecedently or by their subsequent recognition of his acts), seems to us to be included. It would have been extraordinary if the Statute had introduced, as a necessary condition of the delivery, any act to be done within the United States, which is not stipulated for by the Treaty, and we do not find that it has done so. presume Mr. Gordon may have interpreted the words "the original warrant" in section 2 as referring to some warrant issued in the United States, but it seems to us clear that this means the warrant of the Secretary of State, &c., or Officer Adminis- tering the Government of the Colony, mentioned in the first section.

*

We

(2.) With respect to the points which seem to have been made at the hearing before the police magistrate we apprehend it to be clear (as the Law Officers in this country have uniformly advised) that "piracy in the treaty means only piracy according to the law of nations; and also that a United States ship at sea is "within United States jurisdiction" in the sense of those words as used in the statute, and in the treaty. But until copies of the evidence are sent over, we find it impossible to judge whether the conclusion of the magistrate that the acts proved were of a piratical and not a belligerent character was right or not. We should desire to see copies of the whole evidence, and also of the proceedings on habeas corpus (which may possibly have disposed of the case by discharging the prisoners) before we express an opinion upon this point.

We have, &c.

The Earl Russell, K.G.

&c. &c. &c.

(Signed)

ROUNDELL PALMER. R. P. COLLIER.

R. J. PHILLIMORTA

⚫ 16278.-707.

25-2/66.