1864 January. THE CHESAPEAKE. In re DAVID COLLINS, et al., held on Charge of Piracy for Extradition. The importance and peculiar circumstances of this case justify its insertion in this volume, although not an Admiralty case. It was published in pamphlet form in 1864 by Messrs. J. & A. McMillan, St. John, N. B., shortly after Mr. Justice Ritchie's decision. It is now difficult to procure a copy of this pamphlet. This was the first case which had at that time arisen in New Brunswick under the Treaty of Extradition of 1842, between Her Majesty and the United States of America, and the Imperial Act 6 & 7 Vict., c. 76, for giving effect thereto. The publishers at the time, in the preparation of the case, availed themselves of the services of Charles W. Weldon, Esq., one of the counsel engaged in the cause, and of William M. Jarvis, Esq., at that time reporter to the Law Society of decisions at Chambers. It may therefore be relied on as an accurate report of all the proceedings. Shortly after the retaking of the Chesapeake in Sambro, Nova Scotia, some of the original captors having returned to this Province, the United States Consul in St. John addressed to the Hon. S. L. Tilley, the Provincial Secretary, two letters under date 22nd December, 1863 (1). Accompanying (1) REQUISITIONS OF THE UNITED STATES CONSUL. St. John, N. B., Dec. 22nd, 1863. HON. S. L. TILLEY, Provincial Secretary. We had believed until this late hour that a requisition before the Executive would not have been required in the first instance. Yours truly, (Signed.) J. Q. HOWARD, U. S. Consul. UNITED STATES CONSULATE. St. John, New Brunswick, December 22, 1863. HON. S. L. TILLEY, Provincial Secretary. SIR-I have the honor to address, through you, a communication to the Lieutenant Governor of the Province, for the purpose of requesting that His 1864 THE these letters was an affidavit jointly made by Isaac Willett, Excellency will be pleased to use the authority vested in him by the Act of [L.S.] (Signed) Your obt. Servant, J. Q. HOWARD, U. S. Consul. I HEREBY CERTIFY that the foregoing are true copies of the original letters and requisition of J. Q. Howard, Esq., United States Consul, at the City of Saint John, and are now on file in my office. (Signed) Secretary's Office, 29th January, 1864. S. L. TILLEY, Prov. Secretary. (2) Extract from the Treaty between Her Majesty and the United States of America, signed at Washington, August 9th, 1842; commonly known as the "Ashburton Treaty." "ARTICLE X. "It is agreed that Her Britannick Majesty and the United States shall, upon mutual requisitions by them or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within 1864 under the provisions of the Act of Parliament 6 & 7 Vic., cap. 76 (3). THE CHESAPEAKE the territories of the other:- provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective Judges and other Magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such Judges or other Magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining Judge or Magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive." "An Act for giving effect to a treaty between Her Majesty and the United States of America for the apprehension of certain offenders. "Whereas by the tenth article of a treaty between Her Majesty and the United States of America, signed at Washington on the ninth day of August in the year one thousand eight hundred and forty-two, the ratifications whereof were exchanged in London on the thirteenth day of October in the same year, it was agreed that Her Majesty and the said United States should, upon mutual requisitions by them or their ministers, officers, or authorities respectively made, deliver up to justice all persons who being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either of the high contracting parties, should seek an asylum or should be found within the territories of the other; provided that this should only be done upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged should be found would justify his apprehension and commitment for trial if the crime or offence had been there committed, and that the respective Judges and other Magistrates of the two Governments, should have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, so that he might be brought before such Judges or other Magistrates respectively, to the end that the evidence of criminality might be heard and considered, and if on such hearing the evidence should be deemed sufficient to sustain the charge, it should be the duty of the examining Judge or Magistrate to certify the same to the proper executive authority, that a warrant might issue for the surrender of such fugitive, and that the expense of such apprehension and delivery should be borne and defrayed by the party making the requisition and receiving the fugitive; and it is by the eleventh article of the said treaty further agreed, that the tenth article here Mr. Gilbert, on receiving His Excellency's warrant, took inbefore recited, should continue in force until one or other of the high contracting parties should signify its wish to determine it and no longer: And whereas it is expedient that provision should be made for carrying the said agreement into effect, be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same. That in case requisition shall at any time be made by the authority of the said United States, in pursuance of and according to the said treaty, for the delivery of any person charged with the crime of murder, or assault with intent to commit murder, or with the crime of piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of the United States of America, who shall be found within the territories of Her Majesty, it shall be lawful for one of Her Majesty's principal Secretaries of State, or in Ireland for the Chief Secretary of the Lord Lieutenant of Ireland, and in any of Her Majesty's colonies or possessions abroad for the officer administering the Government of any such colony or possession, by warrant under his hand and seal to signify that such requisition has been so made, and to require all Justices of the Peace and other Magistrates and Officers of Justice within their several jurisdictions to govern themselves accordingly, and to aid in apprehending the person so accused, and committing such person to gaol, for the purpose of being delivered up to justice, according to the provisions of the said treaty; and thereupon it shall be lawful for any Justice of the Peace, or other person having power to commit for trial persons accused of crimes against the laws of that part of Her Majesty's Dominions in which such supposed offender shall be found, to examine upon oath any person or persons touching the truth of such charge, and upon such 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 shall be lawful for such Justice of the Peace, or other person having power to commit as aforesaid, to issue his warrant for the apprehension of such person, and also to commit the person so accused to gaol, there to remain until delivered pursuant to such requisition as aforesaid. "II. Provided always, and be it enacted, That in every such case, copies of the depositions upon which the original warrant was granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended." [The remaining sections of the Act are not material to the decision in this case.] WARRANT ISSUED BY THE LIEUTENANT GOVERNOR UNDER THE TREATY NEW BRUNSWICK. [SEAL..] By His Excellency the Honorable ARTHUR HAMILTON GORDON, C. M. G., Lieutenant Governor and Commander-in- 1864 THE CHESAPEAKE 1864 THE CHESAPEAKE ARTHUR H. GORDON. To all and every the Justices of the Peace and Officers of Justice within the Whereas in and by an Act of Parliament made and passed in the sixth and seventh years of the reign of Her Majesty Queen Victoria, entitled "An Act for giving effect to a treaty between Her Majesty and the United States of America for the apprehension of certain offenders," it is among other things enacted "that in case requisition shall at any time be made by the authority of the said United States, in pursuance of and according to the said treaty for the delivery of any person charged with the crime of murder, or assault with intent to commit murder, or with the crime of piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of the United States of America, who shall be found within the territories of Her Majesty, it shall be lawful for one of Her Majesty's principal Secretaries of State, or in Ireland, for the Chief Secretary of the Lord Lieutenant of Ireland, and in any of Her Majesty's colonies or possessions abroad, for the officer administering the Government of any such colony or possession by warrant under his hand and seal to signify that such requisition has been made, and to require all Justices of the Peace and other Magistrates and officers of Justice within their several jurisdictions to govern themselves accordingly and to aid in apprehending the person so accused and committing such person to gaol for the purpose of being delivered up to justice according to the provisions of the said treaty, and thereupon it shall be lawful for any Justice of the Peace or other person having power to commit for trial persons accused of crimes against the laws of that part of Her Majesty's dominions in which such supposed offender shall be found, to examine upon oath any person or persons touching the truth of such charge and upon such 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 of the crime of which he or she shall be so accused, had been there committed, it shall be lawful for such Justice of the Peace or other person having power to commit as aforesaid, to issue his warrant for the apprehension of such person, and also to commit the person so accused to gaol there to remain until delivered pursuant to such requisition as aforesaid. And whereas, in pursuance of and in accordance with the said treaty and act a requisition has been made to me, on behalf of the said United States, by J. Q. Howard, Consul of the said United States at the City of Saint John, in this Province, stating that John C. Braine, H. C. Brooks, David Collins, John Parker Locke, Robert Clifford, Linus Seely, George Robinson, Gilbert Cox, Robert Cox, H. A. Parr, and James McKinney, charged upon the oath of Isaac Willett and Daniel Henderson with having committed the crimes of piracy and murder on the high seas, within the jurisdiction of the said United States of America, on the seventh day of December instant, are, or some of them are now in the City of Saint John, within this Province, and requesting that the said John C. Braine, H. C. Brooks, David Collins, John Parker Locke, Robert Clifford, Linus Seely, George Robinson, Gilbert Cox, Robert Cox, H. A. Parr, and James McKinney, may be delivered up to justice according to the provisions of the said treaty. Now know ye, that pursuant to |