Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876
No. 153.
Mr. Pierrepont to Mr. Fish.
London, July 19, 1876. (Received August 1.)
Sir: * * * * * * *
I believe you are familiar with the case of Burley. On the 25th of February, 1865, Earl Russell, in his dispatch to Mr. Burnley, writes as follows:
Foreign Office, February 25, 1865.
Sir: With reference to the case of Mr. Bennet Burley, who has been given over by the Canadian authorities to the United States Government, under the extradition-treaty, [Page 262] on a charge of robbery, I transmit to you herewith a copy of a letter from Dalglish, M. P., forwarding, at the request of Mr. Burley’s father, a statement relative to his son, from which it would seem that fears are entertained that Bennet Burley will not be tried before the United States courts on a charge of theft, but on a charge of piracy, and Mr. Burley, senior, as a British subject, consequently asks for the good offices of Her Majesty’s government on behalf of his son, in so far as that he may not be tried on any other charge than that on which the claim was made for his extradition.
I have to state to you that, having considered this application in communication with the proper law advisers of the Crown, Her Majesty’s government are of opinion that if the United States Government, having obtained the extradition of Burley on the charge of robbery, do not put him on his trial upon this charge, but upon another, viz, piracy, (which if it had been made before the Canadian authorities they might have held not sufficiently established to warrant his extradition,) this would be a breach of good faith against which Her Majesty’s government might justly remonstrate. If, however, the United States Government does bona fide put Burley on his trial for the offense in respect of which he was given up, it seems to Her Majesty’s government that it would be difficult to question the right of that government to put him upon his trial for piracy also, or any other offense which he may be accused of having committed within their territory, whether such offense was or was not a ground of extradition, or even within the treaty.
Accordingly Her Majesty’s government can only so far comply with the application of Mr. Burley, senior, as to instruct you to protest against any attempt to change the ground of accusation upon which Burley was surrendered in pursuance of the treaty.
I am, &c.,
RUSSELL.
This shows clearly the view which the British government entertained of the treaty when Earl Russell wrote the dispatch, and it is not easy to see how Lord Derby can defend the new position which is now taken.
I herewith inclose a copy of the correspondence relating to extradition presented to the House of Commons, marked “No. 3” and “No. 4.”
I have, &c.,
Mr. Hammond to Mr. Burley.
Sir: I am directed by Earl Russell to acknowledge the receipt of your letter of yesterday’s date, and to state to you that a copy of it shall be transmitted to Her Majesty’s minister at Washington by this evening’s mail, with instructions to continue to use his best exertions, so far as the case admits of it, on your son’s behalf.
I am, however, to add that if your son is bona fide tried for the robbery for which he was given up, the right of the United States Government to try him for piracy also could not be resisted.
I am, &.,
Earl Russell to Sir F. Bruce.
Sir: Her Majesty’s government have considered, in communication with the law advisers of the Crown, Mr. Burnley’s dispatch of the 24th of March, inclosing copies of correspondence which had passed between him and Mr. Seward respecting the case of Bennet Burley, and I have now to inform you that Her Majesty’s government adhere to the opinion which I expressed in my dispatch of the 25th of February, that it would have been a breach of good faith to have put Burley upon his trial for the charge of piracy, which was not the ground of his extradition under the treaty, unless he were, at all events, bona fide tried for robbery, for which offense he was given up.
The same observation is equally applicable to the charge of assault with intent to commit murder, with which Her Majesty’s government do not understand Burley to have been charged before the Canadian authorities.
I have, however, at the same time, to acquaint you that Her Majesty’s government also adhere to the opinion as to their limited power of interference in this case, as expressed [Page 263] in my above-mentioned dispatch, if Burley be really tried upon the charge for which he was given up, and also upon other charges. But it appears from Mr. Seward’s letter to Mr. Burnley of the 20th of March that Burley will not be tried for piracy, as had been apprehended.
I am, &c.,
Mr. Hammond to Mr. Burley.
Sir: With reference to my letter of the 22d instant, I am directed by Earl Russell to inform you that it appears from a dispatch which has been received from Sir F. Bruce that your son is to be tried in the court of the county of Ottawa, of Ohio, on the charge of robbery, and not for robbery on the high seas and piracy, as previously proposed.
Sir F. Bruce adds that he does not consider that it would be advisable for him to make any application to the United States Government on your son’s behalf at present.
I am, &c.,
Mr. Elliot to Mr. Hammond.
Sir: I am directed by Mr. Secretary Cardwell to transmit to you, for the consideration of Earl Russell, the inclosed copy of a letter from Mr. Robert Burley, soliciting the interference of Her Majesty’s government on behalf of his son, Bennet G. Burley, who was concerned in the outrage on board the Philo Parsons, and handed over, under the extradition treaty, by the Canadian government to the United States.
Mr. Cardwell proposes, if his lordship concurs, to inform Mr. Burley that his son’s case is one in which this department cannot interfere.
I am, &c.,
Mr. Burley to Mr. Cardwell.
Sir: I take the liberty to draw your attention to the case of my son, Bennet G. Burley, who was extradited to the United States on 2d February last, by the Canadian government, and who still lies there imprisoned, no decision being yet come to on his case. He held the commission of an “acting master” in the Confederate States navy, and was taken prisoner by the Federals in May, 1864, escaped from Fort Delaware on the following July, went to Canada on his way back to Richmond, and was engaged in the attempt to release the confederate prisoners confined in Johnson’s Island, Lake Erie.
He took his departure from Detroit, a United States port, when entering on the expedition, which only resulted in his party capturing the United States steamers Philo Parsons and Island Queen; and afterward landing in Canada, where he was arrested by the authorities of that colony, and arraigned on several false charges in connection with these captures, air of which broke down in the Toronto courts, when, as a last resort, the charge of robbing the purser of the steamer Philo Parsons of $20, and as false as the others, was made the pretext of his surrender. His acts in connection with these captures were ratified and assumed by the confederate government, and were (when taken in connection with a war undertaking) generous and humane, no person being injured, and personal property scrupulously respected.
He was tried on 11th July last at Port Clinton, Ohio, on the above-mentioned “charge of robbery,” and after a day and a half’s proceedings, the jury (notwithstanding a highly favorable charge by the judge) did not agree to a verdict, and he was sent back to prison to wait another trial, unless bail to the amount of $3,000 be deposited.
His defense has already been carried through at great expense; a new trial must necessitate a repetition of this, if he is to have counsel at all; and this is more than can be provided for him again by his relatives and friends.
From information that has reached me, it appears clear that a sum of money as bail to be forfeited is what is wanted by those who hold him in custody—a sort of ransom, in fact.
[Page 264]I have brought his case, on several occasions, under the notice of the foreign office; but as the authorities of Upper Canada were the chief instruments in compassing his extradition, which, in view of all the circumstances of his case, must be acknowledged to have been contrary to precedent, and a violation of international law, I deem it right to bring his case before the colonial office, in the hope that the authorities therewith connected may see fit to adopt means to effect his release as reparation, in part, for his unjust surrender, either by providing the bail or forfeit, which appears to be the chief thing wanted, or by engaging counsel for his defense on his next trial, which takes place about the middle of October. I have already stated that neither can be provided by me, or other relatives or friends, although a contrary belief and expectation appears to prevail in the quarters of his imprisonment.
I append a letter which appeared in the Toronto Leader, during his trial in Canada, giving a correct statement of the circumstances attending the captures.
I also append a summary of the United States judge’s charge to the jury on the occasion of my son’s trial on 11th July last, which, notwithstanding its favorable tenor, had no effect on a prejudiced jury.
I am, &c.,
Summary of Judge Fitch’s charge in the case, of Bennet G. Burley.
The evidence was clear, and the participation of the defendant was clearly proven, but the theft must be found to have been made with felonious intent; the intent was one thing, and the act another.
* * * * * * *
A confederate government existed, and engaged in carrying on war; that said confederate government had appointed the defendant an “acting master “in her navy, * * * and in obedience to the orders of his superiors he had committed an act for which he was now arraigned.
A state of war existed between the Federal Government and the confederate government, so called, and it made no difference whether the United States Government admitted it or not, the rights of belligerents must be accorded them; the charge was only applicable to a state of war.
* * * * * * *
As a soldier of the Confederate States government, he had a soldier’s right to capture the steamer, and appropriate her, and any money belonging to her, to the cause of his government.
* * * * * * *
An expedition may have all the force gotten upon the territory of a neutral power that it would if gotten upon an enemy’s territory; the going on the boat in disguise made no difference. Men must have authority for taking the lives of persons. A de-facto government could give it; no difference how frail the government, it has the ability to grant such privileges.* * * He had a right, if commissioned, to take the boat, money, or other property, for the furtherance of his government.
Mr. Hammond to Mr. Elliot.
Sir: I have laid before Earl Russell your letter of the 14th instant, inclosing a copy of a letter which Mr. Burley has addressed to the secretary of state for the colonies, in which he applies for the assistance of Her Majesty’s government on behalf of his son, Mr. Bennet G. Burley; and I am to request that you will state to Mr. Secretary Cardwell, in reply, that Earl Russell concurs in the answer which he proposes to return to Mr. Burley.
I am, &c.,
Sir F. Rogers to Mr. Burley.
Sir: I am directed by Mr. Secretary Cardwell to acknowledge the receipt of your letter of the 8th instant, applying for the assistance of Her Majesty’s government on behalf of your son, Mr. Bennet G. Burley; and I am to inform you that your son’s case is one in which Mr. Cardwell is unable to interfere.
I am, &c.,
Petition of Richard Baker Caldwell.
To his excellency and lordship the governor-general of the Dominion of Canada:
The humble petition of Richard Baker Caldwell, of Prescott, in the county of Grenville, in Ontario, in the Dominion of Canada, respectfully represents:
That your petitioner has been, ever since the month of May, 1869, a resident, with his family, at Prescott, aforesaid, engaged in establishing the business of manufacturing boards and shingles, and that his family still there resides.
That your petitioner was forcibly taken from his said residence upon a warrant issued by his honor Alexander MacNabb, police-magistrate at Toronto, upon the information and complaint of Albert Duane Shaw, of the city of Toronto, American consul, stating that your petitioner was guilty of the crime of forgery, committed within the United States of America.
That said charge of forgery was entirely false, and was cunningly devised and intended for the purpose of bringing your petitioner within the limits of the United States of America, so that he might be held amenable for certain alleged offenses which were not extraditable under the provisions of the Ash burton treaty.
That, after the arrest of your petitioner upon said charge of forgery, and after hearing the evidence offered by said A. D. Shaw to substantiate said charge, your petitioner was, upon said charge, and by the authorization of your lordship, in pursuance of the provisions of the treaty between Her Britannic Majesty and the United States of America, commonly called “the Ashburton treaty,” ratified August 9, 1842, providing for the extradition of persons charged with certain offenses, extradited and delivered over to the authorities of the United States, as by the certificate of the said police-magistrate, hereunto annexed, will more fully and at large appear.
That your petitioner, ever since he was so forcibly taken out of the Dominion of Canada, has been confined in a jail in the city of New York.
Your petitioner further humbly shows that the charge of forgery made against him, under which he was taken from his family and home in Canada, and brought to and confined in a gaol in New York, is wholly false, and is made colorable only by the oaths of witnesses who acknowledge that they committed the crime, and say that your petitioner was an accessory or accomplice with them.
Your petitioner further humbly shows that ever since he was so brought to New York he has been anxious to be tried upon the charge for which he was so extradited.
That an indictment has been found against your petitioner in the circuit court of the United States for the southern district of New York, for the alleged offense under the acts of Congress of the United States of bribing officers of the Customs and of the Internal-Revenue Departments, and that he is about to be tried for said alleged offenses, which said offenses, your petitioner is advised, do not fall within said treaty known as the Ashburton treaty, or any other treaty between Great Britain and the United States of America.
That your petitioner, being called upon to plead to said indictment, did interpose a plea to the jurisdiction of said court in the words following, to wit:
“That said Richard B. Caldwell, having heard the indictment against him read, says that this court ought not to take cognizance of the offense in said indictment specified, because, protesting that he is not guilty of the same, he nevertheless says that at the time when he was arrested and brought within the jurisdiction of this court he was a resident of Prescott, in the province of Ontario, Dominion of Canada, and was brought into the jurisdiction of this court on a charge of forgery, under the provisions of the treaty between Her Britannic Majesty and the United States of America, commonly called the Ashburton treaty, ratified August 9, 1842, providing for the extradition of persons charged with certain offenses, and that the offense specified in said indictment is not one of the offenses mentioned in the said treaty, and that this court has no jurisdiction in the premises.
“And this he, the said Richard B. Caldwell, is ready to verify; wherefore he prays judgment, if this court will or ought to take cognizance of the said indictment, and that he may be dismissed and discharged.”
That a demurrer was interposed in behalf of the Government of the United States, wherein and whereby the facts in said plea stated were admitted, and that the said court thereupon rendered an opinion and judgment upon said plea and demurrer, of which an exemplified copy is hereunto annexed; and while your petitioner humbly craves your lordship’s attention to the whole of said opinion, he particularly prays attention to the following passage therein contained:
“The prisoner was brought within the jurisdiction of the United States by virtue of a warrant of the executive authority of a foreign government, upon the requisition of the executive department of the United States; and while abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise.”
[Page 266]Your petitioner further shows that he is advised by his counsel, and believes, and therefore respectfully submits, that it has always been the decision and determination of the governments of Great Britain and the United States of America not to permit any person to be taken from the territory of either to be put upon trial in the other except for the particular offenses specified in their mutual treaties, and that the authorities and cases in support of this position are quoted at large in “Forsyth’s Cases and Opinions on Constitutional Law,” published at London, 1869.
That it is in violation of the law of nations, and of the spirit, and true intent and meaning, if not of the very language, of the treaties between Great Britain and the United States, that your petitioner has been taken from his home in Canada, upon pretense that he was guilty of a crime for which he might properly be extradited, and is now put on trial for an alleged offense for which extradition could not have been demanded or permitted.
Your petitioner, therefore, humbly prays your lordship to ask of the Government of the United States of America that it do not permit your petitioner to be tried for any other offense than that upon pretense of which your lordship allowed the warrant for extradition, or at least not for any offense upon charge whereof your lordship would not have allowed said warrant of extradition to issue.
Also, that the said Government of the United States of America may grant to your petitioner an early trial for the offense whereof he was charged and extradited, and of which he avers himself innocent; or if said Government cannot or do not within a reasonable time establish that your petitioner is guilty of an offense for which his extradition could be properly demanded, then that said Government cause your petitioner, at their own expense, to be returned to his home at Prescott, in Canada.
And your petitioner, as in duty bound, will ever pray, &c.
Counsel for Petitioner, 16 Exchange Place, New York.
United States of
America,
State of New York, City
and County of New York, ss:
Richard Baker Caldwell, of Prescott, in the county of Grenville, in the province of Ontario, in the Dominion of Canada, being duly sworn, doth depose and say that the foregoing petition is in all respects true in substance and matters of fact.
Notary Public, New York City.
The United States vs. Richard B. Caldwell and others.
United States circuit court, southern district of New York.
Benedict, J.:
This case comes before the court upon a demurrer to the plea. The prisoner has been indicted for the offense of bribing an officer of the United States.
To this indictment the defendant pleads that this court ought not to take cognizance of the offense in the indictment, because that at the time when he was arrested and brought within the jurisdiction of this court he was a resident of Prescott, in the province of Ontario, Dominion of Canada, and was brought into the jurisdiction of this court on a charge of forgery, under the provisions of the treaty between Her Britannic Majesty and the United States of America, commonly called the Ash burton treaty, ratified August 9, 1842, providing for the extradition of persons charged with certain offenses; that the offense specified in said indictment is not one of the offenses mentioned in the said treaty, and this court has no jurisdiction in the premises. To this plea the Government demurs, and thus the question is raised whether the facts set forth in the plea are sufficient to oust this court of jurisdiction to try the defendant for an offense otherwise conceded to be within its cognizance.
On the part of the defense reliance is placed upon sending cases in the tribunals of this State, which furnish, it is claimed, a support to the proposition of the defense that this court has jurisdiction of the person of the prisoner for a single purpose only, namely, his trial for the crime for which he was extradited.
The cases referred to are all civil cases, wherein the service of the warrant of arrest set aside by the court on motion, because it appeared that the plaintiff in the action had [Page 267] resorted to fraud to procure the presence of the defendant within the territorial jurisdiction of the court in order that he might cause his arrest. Such cases do not furnish a rule applicable in criminal prosecution, nor do I find any case where a warrant of arrest of a person charged with crime at the instance of the people has been set aside because of deceit practiced to bring the accused within the reach of the warrant.
But if the same rule were applicable in criminal prosecutions and in civil actions, and if the question here arose upon a motion to set aside the arrest instead of a plea to the jurisdiction, I am of opinion that the relief could not be granted, for the reason that the person of the prisoner is not within the jurisdiction of the United States by virtue of any warrant issued out of this or any court. The prisoner was brought within the jurisdiction of the United States by virtue of a warrant of the executive authority of a foreign government upon the requisition of the executive department of the Government of the United States, and while abuse of extradition proceedings and want of good faith in reverting to them doubtless constitute a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise.
To hold otherwise would, in a case like the present, permit a person accused of crime to put the Government on trial for its dealings with a foreign power. In the present case there is hardly room for the charge that the extradition proceedings against the accused were in bad faith, inasmuch as the records of this court show an indictment duly found against the accused for the crime, by reason of which his extradition was granted; but whether extradited in good faith or not, the prisoner, in point of fact, is within the jurisdiction of the court, charged with a crime therein committed, and I am at a loss for even a plausible reason for holding upon such a plea as the present that the court is without jurisdiction to try him.
The question appears to me to be not one of jurisdiction of the court, but rather of privilege of the accused from arrest, and I cannot say that the fact that the defendant was brought within the jurisdiction by virtue of a warrant of extradition for the crime of forgery affords him a legal exemption from prosecution from other crimes by him committed.
I may add that the case of Hulborne, which so far as I know is not reported, probably affords a precedent for the action of the Government in the present case.
Hulborne was delivered by the Government of the United States to the government of Great Britain upon a charge of forgery, when the facts out of which the charge arose were proved before commissioners.
The ground taken in his behalf was that the crime committed was not forgery, but embezzlement.
The commissioner held otherwise, and the prisoner was extradited, but upon arrival in Great Britain he was there indicted and convicted of embezzlement upon the same facts which had been claimed before the commissioners to show forgery. That case, therefore, presented the point now taken here, but whether it was taken upon the trial in Great Britain I do not know. I do not, therefore, refer to the case as an authority, but simply notice it as perhaps a precedent.
The demurrer must be held to be well taken, but the defendant has leave to withdraw his plea and enter a plea of not guilty.
A copy.
Clerk.
Report of a committee of the honorable the privy council, approved by his excellency the governor-general on the 8th of February, 1871.
The committee of council have given their attentive consideration to the annexed report, dated 6th February, 1871, from the honorable the minister of justice, in reference to the petition of Richard Baker Caldwell, who was surrendered to the United States under the extradition treaty, on the charges of forgery and uttering forged paper, and they concur in the opinion given in the said report that the matter of this petition is one for the consideration of Her Majesty’s government, and accordingly recommend that it be transmitted by your excellency to the right honorable Her Majesty’s secretary of state for the colonies, so that such action may be had upon it as Her Majesty’s government may deem expedient.
Certified.
In the matter of the petition of Richard Baker Caldwell, the undersigned, to whom the matter was referred, has the honor to report:
That the petitioner was surrendered to the United States Government, under the treaty with England, on the charges of forgery and uttering forged paper.
That the petitioner appears to have been a resident of the United States until after the alleged commission of those offenses, when he removed to Canada.
That the petitioner states that, although he was surrendered for the crimes above-mentioned, he has not yet been tried for them, and that those charges were not made bona fide, but for the purpose of securing possession of his person, and in order to put him on his trial for the offense against the laws of the United States of bribing officers of the customs and Internal Revenue Department.
He further states that he was indicted for the last-mentioned offense, and pleaded to the indictment; that he was surrendered and brought within the jurisdiction of the court on the charge of forgery, and could not properly be tried except for that charge. To this plea the Government of the United States demurred, and the court decided in favor of the demurrer.
The petitioner quotes a portion of the judgment said to have been delivered upon the occasion, as follows:
“The prisoner was brought within jurisdiction of the United States by virtue of a warrant of the executive authority of a foreign government upon the requisition of the executive department of the United States; and which abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise.”
The petitioner thereupon prays by your excellency to ask the Government of the United States that it do not permit him to be tried for any offense other than that upon pretense of which he was surrendered, and also that an early trial maybe accorded to him for such offense.
The undersigned is of opinion that the matter of this petition is for the consideration of Her Majesty’s government, and he therefore recommends that it be transmitted to the right honorable the secretary of state for the colonies, so that such action may be had upon it as Her Majesty’s government may deem expedient.
The secretary of state for the colonies to the governor-general.
My Lord: I have the honor to acknowledge the receipt of your lordship’s dispatch of the 20th of February relating to the case of Richard Caldwell, who was surrendered to the United States Government under the extradition treaty, on the charges of forgery and uttering forged paper, and who is alleged to have been subjected to legal proceeding in the United States for an offense against the laws of that country for which he was not surrendered, and for which he was not liable to surrender under that treaty.
I have been in communication with the secretary of state for foreign affairs as to this case, and the opinion of the law-officers of the Crown has been taken upon it.
Her Majesty’s government are advised that this is not a case in which they would be justified in claiming the surrender of the petitioner from the United States Government.
The obligation of Great Britain under the convention of 1842 is qualified by no other condition than that evidence of a definite kind shall be forthcoming of the fugitive having committed one of the crimes enumerated in the convention. It appears that such evidence was produced to the satisfaction of the Canadian authorities, and the petitioner was therefore surrendered to the United States Government.
It further appears from the decision of the judge of the circuit court of the southern district of New York, upon the demurrer of the petitioner, that he has been duly indicted for the offense by reason of which he was surrendered, and it seems that he is to be tried for it.
Her Majesty’s government are further advised that there is nothing in the convention which would preclude the indictment of the petitioner in the United States for an additional offense which is not enumerated in the convention, so long as such proceedings were not substituted for proceedings against him on the charge by reason of which he was surrendered.
The original inclosures which accompanied your dispatch are herewith returned, in compliance with your request.
I have, &c.,