Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I

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 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.

[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 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 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 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.

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.

J. L. TILLEY.

[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.,

J. HAMILTON GRAY.

[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.,

HARRY MOODY.