1864 THE to Act 6, W. 4, c. 36, "for more effectually securing the liberty of the subject by enforcing the execution of writs of habeas corpus;" under which the Judge before whom the CHESAPEAKE return was made, was authorized to examine into the truth of the facts set forth in the return, even when that was sufficient, and the Act 19 V., c. 42, "for better securing the liberty of the subject" under which the order in this case had been issued, which gave the Judge enlarged powers, enacting (s. 3) that "upon return to such order, the Judge may proceed to examine into and decide upon the legality of the imprisonment, and make such order, require such said United States of America, by James Q. Howard, Consul of the said United States, at the City of Saint John, in the Province of New Brunswick, stating that John C. Braine, H. C. Brooks, David Collins, John Parker Locke, Robert Clifford, Linus Seely, George Robinson, Gilbrett 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, inst., 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, Gilbrett Cox, Robert Cox, H. A. Parr and James McKinney, may be delivered up to justice according to the provisions of the said treaty; such warrant directed to all and every the Justices of the Peace and Officers of Justice within the Province of New Brunswick, and is as follows-[here His Excellency's warrant is inserted]. (See ante, p. 211.) And whereas, on the receipt of the said warrant by me, and acting under and by virtue thereof and in pursuance of the said Act of Parliament, I did examine Isaac Willett under oath touching the truth of the said charges set forth in the said warrant, and upon the evidence of the said Isaac Willett, in pursuance of the said Act of Parliament, I did on the 25th day of December last, issue my warrant, under my hand and seal, for the apprehension of the said persons upon the charges aforesaid, in the words following-[here is inserted warrant of apprehension]. (See ante, p. 215.) And David Collins, James McKinney and Linus Seely, three of the persons in the said warrant, having been found within my jurisdiction, and having been arrested and brought before me, under and by virtue of the said warrant, and I having proceeded to the investigation of the charge of piracy charged against the said named persons so brought before me, and upon the examination of the witnesses under oath touching the offence of piracy charged against the parties so brought before me, and upon the evidence before me under oath, I do hereby, under the Act of the Imperial Parliament, command you, the said Constable or Peace Officers, to convey the said David Collins, James McKinney and Linus Seely, to the common goal of the City and County of Saint John, and deliver each of them to the keeper thereof, upon the charge 1864 THE verification, and direct such notices or further returns in respect thereof as he may deem necessary or proper for the CHESAPEAKE purposes of justice, and may, and he is hereby empowered by order in writing signed as aforesaid, to require the immediate discharge from prison, or may direct the bailment of such prisoner in such manner and for such purpose, and with the like effect and proceeding, as is now allowed upon habeas corpus." Ritchie, J. I think some facts should be shown on affidavit to authorize my making the order asked for. I have no judicial knowledge of the proceedings before the magistrate. of piracy, for that they having, on the 7th day of December, in the year of our Lord one thousand eight hundred and sixty-three, on the high seas, about twenty miles north northeast of Cape Cod, in the United States of America, with force and arms, maliciously, wilfully, feloniously and piratically made an assault upon the said Isaac Willett and others, the mariners then on board and in charge and command of the steamboat or vessel named the Chesapeake, the said vessel being a vessel belonging to the United States of America, and registered in the United States according to the laws of such States, and belonging to one Henry B. Cromwell, a citizen of the United States of America, and being of the value of sixty thousand dollars of lawful money of New Brunswick, and having on board a cargo of the value of eighty thousand dollars of like lawful money, and the said vessel being then on a voyage from the port of New York, in the United States of America, to the port of Portland, in the said United States of America, and having then and there piratically, feloniously, wilfully and maliciously put the said Isaac Willett and others, the crew of the said vessel, in fear and danger of their lives, on the high seas aforesaid, and having then and there maliciously, wilfully, feloniously and piratically taken possession of the said vessel and the cargo thereof, and with having then and there feloniously stolen and taken the said vessel and cargo, upon the high seas aforesaid, there to remain until delivered, pursuant to the requisition as aforesaid; and you, the said keeper, shall receive and safely keep each of them upon the said charge until delivered pursuant to such requisition as aforesaid. Given under my hand and seal, at the City of Saint John, in the City and County of Saint John, this twenty-fifth day of February, in the year of our Lord one thousand eight hundred and sixty-four. (Signed) H. T. GILBERT, a Justice of the Peace, [L. S.] for the City and County of St. John, and Police Magistrate for said City. And this is the cause of the detaining the said David Collins, James McKinney and Linus Seely, whose bodies I have ready. 26th February, 1864. JAMES A. HARDING, Sheriff of the City and County of Saint John. 1864 THE Gray, Q. C., referred to the language of the act giving the Judge the power to order the evidence to be brought before him, even if the warrant of commitment were sufficient. CHESAPEAKE The act should have a construction in favor of liberty. There was a distinction between applications before and after indictment. Where an indictment has been found the court cannot go behind it. But on a commitment before indictment, it is otherwise. People v. Martin (1). Ritchie, J. I have no doubt I may make the order, but do not think I ought to do so until some reasons are brought before me on affidavit. I must presume everything to be correct. Gray, Q. C., stated he would obtain an affidavit if required; none could however be made before the return to the order was filed, and the only reason for making the present application was to save unnecessary delay. The Police Magistrate had received notice to produce the papers required. On the 27th February Gray, Q. C., applied for an order to the Police Magistrate to produce the proceedings and depositions taken in this case, on an affidavit of David Collins, one of the prisoners, stating that they were confined by virtue of a warrant issued by the Police Magistrate of Saint John, on a charge of piracy; that the warrant was founded on certain depositions taken before the said Magistrate, by which it appeared that the offence, if any, was committed on the high seas, and without the jurisdiction of this province and the United States; that no charge had been made or proceedings commenced against any of the prisoners, for piracy or otherwise, in any court of the United States; that they were acting under due authority from the Confederate States of America, and not pirates, but belligerents, acting against the United States, jure belli; that no requisition by the proper authorities in the United States had been made to justify the proceeding taken against the prisoners; and also stating that the facts set out in the warrant of commitment were not supported by the evidence adduced. (1) 1 Parker, Crim. R. 187. 1864 He cited Archibold's Criminal Practice by Waterman (1); People v. Martin (2). THE CHESAPEAKE Wetmore, Q. C., for the prosecution, objected that this proceeding took place under the Imperial Statute passed to give effect to the Ashburton Treaty and not a habeas corpus act. Ritchie, J. I am proceeding, not under a habeas corpus, nor the Imperial Statute referred to, but under an act giving me like powers upon an order issued under the act as in a proceeding upon habeas corpus. I have no doubt this is a proceeding which peculiarly calls for the interposition of the highest tribunals of the land. It is the duty of Her Majesty's Justices to see that the liberty of her subjects is preserved. If the court will interfere in the case of persons committed for trial in this country, a fortiori the court will interfere where the parties are to be sent abroad. The only English case I am aware of under the Extradition Statutes is one which arose under that passed to carry out the treaty with France, ex parte Besset (3), where the court held that their powers, being statutory, were to have a strict construction. I cannot doubt I have power to review the proceedings before the magistrate, and if there was no ground for those proceedings, or the magistrate has fallen into any error, either in form or substance, and I should be of opinion the parties are illegally imprisoned, to discharge them. I think I should be failing in one of the most important of my duties did I not order not only the warrant, but also, as an affidavit has been made before me that the evidence did not warrant the conclusion the magistrate arrived at, the depositions and proceedings before him to be brought up; and I consider it my duty, in the words of the Act, to "examine into and decide upon the legality of the imprisonment," and, the return being questioned, “to require such verification" as I may deem necessary; and to enable me so to examine and decide, I think I ought to "direct the further returns" asked for to be made. The depositions being then handed in by Mr. Gilbert, and being read, including the charge contained in the heading of (1) pp. 220, 2, 3. (2) 1 Parker's Crim. R. 187. (3) 6 Q. B. 481. the depositions, (10) the case was then fully argued before the learned judge on Saturday, the 27th February, and the following Monday, Tuesday and Wednesday. Gray, Q. C., and C. W. Weldon for the prisoners. (10) HEADING OF THE EVIDENCE, ETC., RETURNED BY THE POLICE MAGISTRATE BEFORE THE JUDGE. David Collins, James McKinney and Linus Seely stand charged before me, Humphrey T. Gilbert, Esquire, Police Magistrate of the city of Saint John, and one of Her Majesty's Justices of the Peace for the City and County of Saint John, acting under a warrant under the hand and seal of His Excellency the Honorable Arthur Hamilton Gordon, C. M. G., Lieutenant Governor and Commander-in-Chief of the Province of New Brunswick, bearing date the twenty-fourth day of December, in the year of our Lord one thousand eight hundred and sixty-three, and made and issued in pursuance of the Act of the Imperial Parliament, entitled "An Act for giving effect to a treaty between Her Majesty and the United States of America, for the apprehension of certain offenders," such warrant being directed to all and every the Justices of the Peace and Officers of Justice, within the Province of New Brunswick; for that they, the said David Collins, James McKinney and Linus Seely (together with John C. Braine, H. C. Brooks, Robert Clifford, George Robinson, Gilbrett Cox, Robert Cox and H. A. Parr, not brought up before me for examination), did on the seventh day of December, in the year of our Lord one thousand eight hundred and sixty-three, upon the high seas, about twenty miles north northeast of Cape Cod, in the said United States of America, and within the jurisdiction of the said United States of America, and the Circuit Courts thereof, then being passengers in and on board a certain passenger and freight steamer called the Chesapeake, United States of America register, owned, belonging and appertaining to Henry B. Cromwell, a subject of the said United States of America, whereof Isaac Willett, also a subject thereof, was master, while on a voyage from New York to Portland, in the said United States of America, with force and arms, turned pirates, and the said steam vessel and the apparel and tackle thereof, of the value of sixty thousand dollars of lawful money of the said United States of America, and of the Province of New Brunswick, and a cargo owned by persons unknown, of the value of eighty thousand dollars of like lawful money, then and there being in the said steam vessel, under the care and custody and in the possession of the said Isaac Willet as master of the said steam 'vessel, then and there, upon the high seas aforesaid, within the jurisdiction aforesaid, about the distance of twenty miles north northeast of Cape Cod aforesaid, with force and arms, from the care, custody and possession of the said Isaac Willett, and against the will of the said Isaac Willett and the crew and mariners assisting the said Isaac Willett in the navigation of the said steam vessel, piratically and feloniously did steal, take and run away with, they, the said David Collins, James McKinney and Linus Seely, being passengers on board of the said steam vessel, and in and on board the same, on the high seas aforesaid, against the laws of the United States of America and the Statutes of the United Kingdom of Great Britain and Ireland. R 1864 CHESAPEAKE |