No. 11.
Lieutenant Governor Gordon to the Duke of
Newcastle,—(Received January 19,
1864.)
[Extract.]
Frederickton, New
Brunswick,
January 1, 1864.
In my despatch of the 21st ultimo I had the honor to transmit to your
grace such information as I had at that time received with respect
to the seizure, by certain parties, of the United States steamship
Chesapeake.
The administrator of the government of Nova Scotia has, I am aware,
already transmitted to your grace a detailed report of all
subsequent proceedings in reference to this vessel within the limits
of his jurisdiction. It only remains for me to state to your grace
what has taken place here in connexion with this subject since the
date of my despatch of the 21st ultimo.
On the receipt of the intelligence of the capture of the Chesapeake
in Washington, her Majesty’s minister at that capital transmitted to
me a telegraphic despatch, intimating the desire of the United
States government for the detention of the Chesapeake and her
captors, should she put into a port in New Brunswick.
On the morning of the 23d ultimo I received from Mr. Howard, the
United States consul at St. John, the requisition and depositions of
which I have the honor to enclose copies.
I felt no hesitation in granting the desired warrant upon the
consul’s requisition, and quite irrespectively of the depositions
which accompanied it. It does not appear to me that my functions in
such a case are in any respect judicial? and I hold that it is my
duty, on the requisition of the proper authorities, to issue [Page 496] the warrant which empowers
the local magistrates to take cognizance of cases which would
otherwise be without their jurisdiction. I apprehend that it is then
the duty of the magistrate to proceed precisely as he would had the
alleged offence been committed within the limits of this province,
and to commit for trial or discharge from custody the parties
accused according as the evidence laid before him may appear to
warrant. I make this observation, because although the construction
of the articles of the treaty of Washington and of the imperial act
of 6 and 7 Vict., cap. 76, appears to me plain and evident, I am
aware that a variety of opinions are entertained on this subject,
and that many persons hold, first, that the lieutenant governor and
other functionaries, mentioned in the first section of the act,
exercise a judicial authority, and may grant or refuse the warrant
according to the evidence laid before them; and secondly, that the
warrant when issued is a positive order to arrest the parties named,
for the purpose of delivering them up, and that the magistrate who
acts under it has no discretion but to obey, and no power to examine
witnesses or receive evidence to show why a committal should not
take place. Both these views appear to me directly contrary to the
plain language of the treaty and the act of Parliament, by which
power is given me to enable the local magistrates to proceed—a power
which I conceive I am bound to exercise when properly called on to
do so; and in the event of the magistrate finding that the evidence
laid before him is such as would induce him to commit the alleged
offender for trial, had the offence been committed in this province,
that I am then further bound to issue my warrant for his extradition
and surrender to the judicial authorities of the United States.
Whilst, however, I had no hesitation in granting the warrant oh the
consul’s requisition, I entertained some doubts how far I should be
justified in directing the apprehension of persons who were not even
alleged to be within this province, as it appeared to me very
questionable whether I could, simply as a measure of precaution
against their subsequent entry into the province at some future
time, issue such a document.
I had in the mean while, learnt that three at least of the persons
engaged in the seizure of the Chesapeake were in St. John, and
accordingly any doubts which I might have felt on account of their
absence as to the propriety of issuing the warrant were set at rest,
and immediately on the solicitor general’s arrival a warrant was
prepared, founded on one issued by Sir William Colebrook, in the
year 1845, when lieutenant-governor of this province. Of this
warrant I have the honor to enclose a copy for your grace’s
information.
The warrant was sent down to St John the same night, and on the
following day tvo of the parties, David Collins and James Mackinley,
were apprehended under a warrant issued by Mr. Gilbert, the police
magistrate at St. John. Mr. Braine, who was also named on the
warrant, had left St. John that morning, and is believed to have
returned to Nova Scotia. Another of the parties implicated, Linus
Seeley, has, I understand, since been arrested in St. John.
The enclosed extracts from newspapers give, I believe, an accurate
account of the proceedings before the police magistrate.
On the 1st instant I received from the honorable J. H. Grey, who has
been retained to defend the parties, a letter of which, as well as
of my reply, I have the honor to enclose a copy.
As the question how far the prisoners are entitled to copies of the
requisition on which the warrant was issued is one of some
importance, and also one on which great diversity of opinion is
likely to exist, I have thought it right to consult the law officers
of the crown before giving a definite answer to Mr. Gray.
[Page 497]
[Enclosure 1 in No.
11.]
Mr. Howard to Mr. Tilley.
United States’ Consulate,
St. John, New Brunswick,
December 22,
1863.
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 excellency will
be pleased to use the authority vested in him by the act of
Parliament for giving effect to what is known as the Ashburton
treaty, to the end that certain offenders may be apprehended and
delivered up to justice.
You will please make known to his excellency that as an officer
of the government of the United States, I am authorized by the
executive department of that government to make a requisition
upon him as the officer administering the government of the
province, in order that certain persons believed to be guilty of
the crime of piracy may be brought before the proper officers of
justice, so that the evidence of their guilt or innocence may be
heard and considered.
I have therefore the honor to request that, in accordance with
the provisions of the said act of Parliament, his excellency
will by warrant signify that a requisition has been made for the
apprehension of John C. Braine, H. C. Brookes, David Collins,
John Parker Locke, Robert Clifford, Linus Seeley, George
Robinson, Gilbert Cox, Robert Cox, H. H. Parr, and James
McKinney, and require that all justices of the peace and other
magistrates within the jurisdiction of this province shall and
in apprehending the above-named persons accused of the crime of
piracy, for the purpose of having them brought to trial.
I am, &c.
J. Q. HOWARD, United States
Consul.
[Enclosure 2 in No.
11.]
Deposition of Isaac Willets and Daniel
Henderson.
Province of New Brunswick,
City and County of St. John, to wit:
32 c
Isaac Willets of the city of New York, in the State of New York,
United States of America, captain of the steamer Chesapeake,
belonging to the United States of America, and Daniel Henderson,
of the city of Portland, in the State of Maine, one of the said
United States, second mate of the said steamer, severally make
oath and say, and first this deponent, Isaac Willets, for
himself saith: That he, this deponent, sailed in the said
steamer from the said city of New York on Saturday, the fifth
day of December instant, about four of the clock in the
afternoon, bound for the city of Portland aforesaid, with
passengers and general cargo, and continued on the voyage to
Portland aforesaid, and nothing material to be related occurred
until Monday morning, the seventh day of December instant; when,
about one of the clock a. m. on the said morning, this deponent
being asleep in his berth, the first mate of the said steamer,
named Charles Johnson, came to this deponent’s state-room and
called this deponent, and told him that some one had shot the
second engineer of the said steamer; that this deponent got up
and went aft as soon as he could, and found the second engineer
lying on the upper deck, with his legs hanging down the gangway
up which he had come; that this deponent was in the act of
stooping down to pick up the second engineer, when two persons
fired at this deponent; that as this deponent was endeavoring to
get to his pilot-house, several shots were fired at him, and
when he opened the door to go into the said house, he was
collared [Page 498] by a person
calling himself H. A. Parr, and a pistol was put to this
deponent’s face, and handcuffs were put on him, and they put
this deponent in his room, and kept him there about an hour, and
then took this deponent to the cabin and kept him there until
daylight, when they brought the first mate and chief engineer to
the same place, both of whom had been shot, the engineer in the
chin and the mate in the knee and arm; that afterwards this
deponent was permitted to go about the steamer under guard as a
prisoner; that this deponent could not perceive any life in the
second engineer when he stooped to pick him up, and afterwards
said engineer was thrown overboard: that on Tuesday morning
about seven of the clock, the said steamer came to anchor in
Seal-Cove harbor, Grand Manan; that shortly after the steamer
was anchored, several persons, not of the crew of the said
steamer, took a boat and went ashore, and about the middle of
the said day steam was got on the said steamer, and she was
steered towards the harbor of St. John; that about three of the
clock on the said Tuesday afternoon the captors of the said
steamer took this deponent into his stateroom, and compelled him
to give up his money to them; the names of the persons who
compelled this deponent to give up the said money, amounting to
eighty-seven dollars, were John C. Braine, called colonel, and
H. A. Parr, styled first lieutenant; that this deponent became
acquainted with the names of the said John C. Braine and H. A.
Parr from the order which was served by them upon this deponent,
and the said H. A. Parr addressed the said John C. Braine as
colonel; that about four of the clock in the afternoon of the
said Tuesday the pilot-boat Simonds ran alongside of us, and the
steamer was ordered to stop, which was done, and a man came on
board, who had a conversation with the said John C. Braine, and
afterwards returned to the pilot-boat, when John Parker, alias John Parker Locke, came on board of
the steamer from the said pilot-boat, and then the steamer was
kept on her course until she came to Dipper harbor, when the
pilot-boat was taken in tow by the said steamer, and the said
John Parker, alias John Parker Locke,
said that he would give this deponent ten minutes to get on
board the said pilot-boat; that all of the crew of the said
steamer went on board the said pilot-boat, with the exception of
the first and third engineers and three firemen, who were
retained on board the said steamer; that this deponent saw the
said steamer, in charge of her captors, continue on her way
towards St. John, and this deponent was brought in the said
pilot-boat to Partridge island, and from that to the city of St.
John, in a ship’s boat, where he arrived about four of the clock
on Wednesday morning, the ninth day of December instant; that
John C. Braine, David Collins, George Robinson, and H. A. Parr
were four of the persons engaged in the capture of the said
steamer Chesapeake, whose names this deponent knows; that the
said John C. Braine was styled colonel, the said H. A. Parr
first lieutenant, the said David Collins second lieutenant, and
the said George Robinson sailing-master, and when the said John
Parker, alias John Parker Locke, came on
board he was styled captain; that there were fifteen persons in
all engaged in the said capture, and this deponent does not know
the names of the remaining eleven; that the said steamer, when
she was captured by the said persons, was about twenty miles
north of Cape Cod, and all of the said fifteen persons came on
board of the said steamer as passengers at New York, bound for
Portland as aforesaid, but without tickets and said that they
had not time to procure tickets, and all but two of the said
persons paid the usual passage money, and the said two promised
to pay when they arrived at Portland. And the said Daniel
Henderson for himself saith, that he was second mate on board
the said steamer Chesapeake, on her passage from New York to
Portland aforesaid, on the fifth of December instant that about
one of the clock on Monday morning, the seventh instant, the
door of this deponent’s state-room was broken open on board the
said steamer, and four persons stood in the door, and ordered
this deponent to get up and put his clothes on; that all of the
said four persons had pistols in their hands; that after this
[Page 499] deponent got his
clothes on they handcuffed him, and told him he was a prisoner
to the Confederate States; that they refused to allow this
deponent to see any person belonging to the said ship, but kept
this deponent locked in his state-room in irons; that after this
deponent had been locked in his room about ten minutes, he heard
a man knocked down in the pilot-house, which adjoined this
deponent’s room, and then this deponent burst open the door of
his room and fell on deck, when two of the captor’s took this
deponent by the hair and dragged him into the pilot-house, where
he remained until seven of the clock on the said Monday morning;
that at eight of the clock on the said morning they took this
deponent to the cabin, where he was kept nearly all the time
until the said steamer got to Grand Manan, when this deponent
was ordered on deck to clear away the chain, so as to let go the
anchor, and from Grand Manan this deponent came to St. John
aforesaid, as stated by Isaac Willets, master of the said
steamer; that Orin Schaffer, the second engineer of the said
steamer, was missing from the said vessel when this deponent
came on the deck of the said vessel on the said Monday morning,
and this deponent heard several of the said captors, among
others the said H. A. Parr, say that the said second engineer
was killed, and had been thrown overboard; and this deponent
further saith that the first mate, Charles Johnson, was shot in
the right knee and the left arm, and the chief engineer, James
Johnson, was shot in the chin, and retained on board the said
vessel; that this deponent does not know the names of any others
of the said captors, with the exception of the said H. A.
Parr.
And these deponents, Isaac Willets and Daniel Henderson, both say
that they are informed and fully believe that John C. Braine, H.
C. Brookes, David Collins, John Parker Locke, alias John Parker, Linus Seeley, George Robinson,
Gilbert Cox, Robert Cox, James McKinney, Robert Clifford, and H.
A. Parr, were, amongst others, the captors of the said steamer
Chesapeake, a steamer of the said United States, while on her
passage from New York aforesaid to Portland aforesaid.
And these deponents further say, that the said persons above
named, being passengers on board the said steamer, took forcible
possession of the said steamer against the will of these
deponents, and the other officers and crew of the said
steamer.
The said Isaac Willets and Paniel Henderson were severally sworn
to the foregoing affidavit of the twenty-second day of December,
A. D. 1863, before me, the said affidavit having been first read
over and explained to the said Daniel Henderson, he appearing
perfectly to understand the same.
ISAAC WILLETS.
his
DANIEL + HENDERSON,
mark.
H. J. Gilbert
Police Magistrate for the City of St.
John.
[Enclosure 3 in No. 11.]
Warrant.
By his excellency the honorable Arthur Hamilton Gordon, C.M.G.,
lieutenant governor and commander-in-chief of the province of
New Brunswick, &c.
To all and every the justices of the peace and
officers of justice within the province of New Brunswick,
greeting:
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 [Page 500] 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 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
and in apprehending the person so accused, and committing such
person to jail, 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 jail, 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, in the city of St. John, in this province,
stating that John C. Braine, H. C. Brookes, David Collins, John
Parker Locke, Robert Clifford, Linus Seeley, George Robinson,
Gilbert Cox, Robert Cox, H. H. Parr, and James McKinney, charged
upon 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, all or some of them are now
in the city of St. John, within this province, and requesting
that the said John C. Braine, H. C. Brookes, David Collins, John
Parker Locke, Robert Clifford, Linus Seeley, George Robinson,
Gilbert Cox, Robert Cox, H. H. Parr, and James McKinney may be
delivered up to justice according to the provisions of the said
treaty:
Now know ye, that, pursuant to the power in me vested in and by
the said act of Parliament, I do hereby by this warrant, under
my hand and seal, signify that such requisition has been so
made, and hereby require and command all justices of the peace
and other magistrates and other officers of justice of this
province, within their several jurisdictions, to govern
themselves accordingly and to aid in apprehending the said John
C. Braine, H. C. Brookes, David Collins, John Parker Locke,
Robert Clifford, Linus Seeley, George Robins Gilbert Cox, Robert
Cox, H. H. Parr, and James McKinney, so accused, and committing
them the said John C. Braine, H. C. Brookes, David Collins, John
Parker Locke, Robert Clifford, Linus Seeley, George Robinson,
Gilbert Cox, Robert Cox, H. H. Parr, and James McKinney to jail,
for the purpose of being delivered up to justice, according to
the provisions of the said treaty; and they will not fail at
their peril.
[Page 501]
Given under my hand and seal, at Frederickton, in this province
of New Brunswick, this twenty-fourth day of December, in the
twenty-seventh year of her Majesty’s reign, A. D. 1863.
By his excellency’s command.
[Enclosure 4 in No.
11.]
Mr. Gray to Lieutenant Governor Gordon.
St. John,
December 31,
1863.
May it please your Excellency: Two
persons named David Collins and James McKinney having been
arrested under warrant issued by the police magistrate, Mr.
Gilbert, charged with piracy and murder in the matter of the
steamer Chesapeake, which warrant recites a previous warrant
issued by your excellency on the requisition of Mr. Howard, the
American consul at this port, against the said persons and other
persons named therein, and Mr. Weldon and myself having been
retained to defend the prisoners, we have to request from your
excellency, on their behalf, copies of the requisition made by
Mr. Howard, and of any other papers, depositions, documents, or
warrants laid before your excellency under the extradition
treaty with the United States, on which your excellency’s
warrant was founded. I conceive the parties arrested are legally
entitled to this information.
If not requesting too much, as the parties are to be brought up
on Monday, the 4th of January next, I should feel obliged by
your excellency’s permitting me to have the copies before that
time, and also that they may be certified as copies by your
excellency.
I have, &c.,
[Enclosure 5 in No.
11.]
Captain Moody to Mr. Gray.
Frederickton,
January 2,
1864.
Sir: I am directed by his excellency
the lieutenant governor to acknowledge the receipt of your
letter of the 31st ultimo, in which you make application to his
excellency to be furnished with copies of a warrant lately
issued by his excellency under the extradition treaty with the
United States, authorizing the arrest of certain persons therein
named, as well as for copies of any application that may have
been made to his excellency by the United States consul at St.
John on this subject, and of the depositions by which such
application may have been accompanied. I am further directed to
inform you that his excellency will lose no time in consulting
the law officers of the crown on the subject of your
application, and his excellency’s reply shall be communicated to
you with the least possible delay.
I have, &c.,
