CO885-(10-11) — Page 354

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PUBLIC RECORD OFFICE

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C.O. 885

Reference :-

PUBLIC RECORD OFFICE, LONDON

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No. 288.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, December 13, 1864. Ws are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 5th instant, stating that with reference to our report of the 25th ultimo* he was directed by your Lordship to transmit to us a letter and its enclosures from the Colonial Office relative to the recent attack on the town of St. Alban'a, Vermont, by certain persons alleging themselves to be acting under the Confederate Government. That we should perceive that Mr. Secretary Cardwell requests to be favoured with our opinion as to what instructions should be given to Lord Monck when the Supreme Court shall have delivered its judgment in this case, and especially as to what course should be taken in the Colony if the judges should determine against the extradition of the accused persons on the ground that they were acting as officers of the Confederate Government. Previous papers were also enclosed, and Mr. Hammond was to request that we would take this matter into consideration and furnish your Lordship at our earliest convenience with our opinion thereupon.

We are also honoured with Mr. Hammond's letter of the 8th instant, transmitting two further Despatches from Lord Lyons relative to this case.

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

Report

That if the proper legal authority in Canada should decide that these persons ought to be delivered up under the Treaty of Extradition and the statute 6 & 7 Vict. c. 76. to the

proper United States authority, that decision ought, in our opinion, to be acted upon, and in that case no further immediate difficulty will be likely to arise.

Upon the evidence, as it now stands, it would appear that these persons went privately in plain clothes without any military demonstration to the town of St. Albans, and while there took possession of horses belonging to one of the inhabitants of that town, and having obtained admission into several of the banks and seized money and other property there, and afterwards fired pistols upon unarmed citzena, killing one and wounding others.

It is for the legal authorities in Canada to determine how far (if at all) the character of these acta may be affected in point of law by evidence (if such evidence should be pro- duced) that in so doing the perpetrators acted under orders from some military or other authority in the Confederate States. But upon the information now before us we are not prepared to say that a decision holding such acts to be robbery and murder under the circumstances above described, and not acts of war, would be erroneous.

If, however, the Supreme Court should decide that these persons are, by reason of any commissione granted to them by the Confederate authorities or otherwise, to be regarded as belligerents, and not as criminals, a great difficulty may and probably will

arise.

It appears to us that in this case 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 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 against a friendly power, and (unless the Canadian Law Officers should see reason to the contrary) we think that they ought, in the case supposed, to be retained in custody and brought to trial for that offence. It is evident that any proofs which may be offered of 'their having concerted and executed das expedition under the direct authority and instructions of any persons exercising military authority or powers of government in the Confederate States may constitute important evidence in support of such a charge. We need hardly add that so flagrant a violation of Her Majesty's neutrality by the Confederate authorities, as would be involved in the organisation and execution of such a design under their immediate orders, would require the very serious attention of Her Majesty's Government.

O 16278.-685. 25.-2,96.

• No. 284.

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