In view of the re-arrest of most if not all of the raiders, I would leave
it to you to decide whether it is necessary to act upon the suggestions
of his excellency.
I have the honor to be, with the highest consideration, sir, your most
obedient, humble servant,
Hon. William H. Seward,
&c., &c., &c.
Mr. Gordon to Mr. Burnley
Fredericton,
December 29, 1864.
Sir: I have had the honor this morning to
receive your despatch of the 20th instant, enclosing a copy of a
note from the Secretary of State of the United States, requesting
the extradition of certain parties therein named.
Requisitions under the provisions of the Ashburton treaty for the
surrender of criminals who had taken refuge in this province have
hitherto been invariably made directly to the lieutenant governor of
the province, through the United States consul at St. John’s, or the
governor of the State in which the offence was committed; and with a
view to securing the object desired, I should venture to recommend
that the precedents in this respect should be adhered to, as it is
far from impossible that the note of the Secretary of State might be
considered in our courts of law as not a formal requisition under
the treaty. I do not myself share this opinion, and should be ready
to issue my warrant on the notification received by you, but in such
cases it is as well to take no steps by which, if taken, the
subsequent proceedings may incur a risk of being vitiated.
A copy of the opinion of the law officers of the Crown in England,
dated January 27, 1864, was no doubt forwarded to her Majesty’s
mission at Washington; but to prevent all possibility of
misconception, I annex extracts from that opinion which seems to
throw some doubt upon the propriety of my issuing such a warrant
without evidence being adduced of the commission of the offence of
the parties and of their being now within this province, and which
show the absolute necessity for the production of such evidence
before a magistrate can commit the parties to jail for
extradition.
As, however, the case now under consideration is one the main facts
of which are matter of notoriety, I am prepared to issue my warrant
on the receipt from you of a telegraphic intimation that the
evidence which will be required by the committing magistrate is
about to be forwarded, together with the reasons which induce Mr.
Seward to believe that the parties are now in this province.
I must, however, point out the entire inutility of my issuing my
warrant or of attempting to arrest the parties (if in New Brunswick)
until I have been placed in possession of evidence to adduce against
them. At the present moment any magistrate before whom they might be
brought must inevitably order their discharge. He would call on
whatever counsel may be intrusted with the prosecution of the case
for evidence such as would be required to enable him to commit for
trial had the offence been committed within his own jurisdiction.
But none such could be offered, as, except the statement of Mr.
Seward’s note, not even any prima facia
evidence is adduced as to the connexion of the parties named with
the offence committed, and they would necessarily be at once set at
liberty.
It is provided that copies of the depositions originally taken may in
such cases be received as evidence; and if I learn that such
documents have been forwarded, or are on the point of being
forwarded, I will at once take whatever steps are in my power for
bringing the alleged criminals to justice.
I may remark, however, that I have received no information which
leads me to believe that the parties named are in this province; but
I have to request that you will inform Mr. Seward that I have given
stringent directions to the police to ascertain whether such is the
case, and in the event of the discovery of any of these individuals,
to maintain a careful watch upon them until I am in a position to
proceed against them with more probability of effecting their
extradition than is now the case.
I have, &c.
J, H. Burnley, Esq., &c., &c., &c.
