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Summary. 1. After notice of the Mallory report, and the attempt on Johnson's Island in November, 1863, and the complaints and requests of the United States in December, 1863, and January, 1864, it was negligence in Lord Russell not to communicate them to the Canadian Government.
2. After the events of 1863, and the increased activity of the Confederates in 1864, and the notoriety of their intentions, and the complaints of Mr. Seward through Lord Lyons to Lord Monck in 1864, the inactivity of the Canadian authorities; either to take measures to prevent the raid or to provide for more stringent legislation for that end, was negligence.
3. The conduct of Judge Coursol clearly shows gross negligence and gross partiality for the Southerners; and the Government is responsible for his negligence.
His own admission is conclusive.
4. The conduct of Ermatinger and his negligence should bind the Government. His reports to the Prime Minister, Taché, are not produced. The omission to produce them raises every presumption against the Government of Canada.
After the Raid.
On the return of the raiders to neutral soil, it was the duty of the Canadian authorities to use due diligence immediately to disarm the raiders, to take their plunder away from them, and to restore it to the true owners.
The Canadian Government, by restoring to the banks the 86,900 dollars improperly returned to the raiders by Lamothe and Coursol, have recognized the correctness of this rule.
The law of nations required them to do so.
The Magistrate, Bailiff, and Clerk of the Court at Frelighsburg aided the raiders to conceal their plunder, and did all they could to thwart the active pursuit of the parties from St. Alban’s.
They claim that because the Magistrates had no authority to arrest the raiders for extradition, therefore they had no right to issue search warrants for the stolen property, is untenable. The concealing stolen property from the owner, and keeping it hidden for the thief, is a crime committed in Canada ; the receiving of stolen property from the thief, and keeping it for him at Frelighsburg, is a crime against the laws of Canada, and it is no matter in this respect where the property was originally stolen.
Mr. Langevin saw the point at once, and on his cross-examination refused to answer the questions that touched that point. (P. 58.)
The Magistrates, therefore, had authority to issue search warrants for the stolen property, because the receiving and hiding it was a crime against Canada.
Judge Hoyt (Depositions for claimants, p. 36) says, “It was
search warrants I applied for—to search people's houses where we heard the money was secreted.”
“We applied to the Magistrates five or six times during the eight days I was there, but we did not get one; and one of them told us that we should not get one."
This is corroborated by A. M. Clark, C. C. Burton, A. L. Hall, Charles 0. Standish.
No testimony to contradict them.
The proof shows collusion and complicity with the raiders to conceal their plunder, and to help them to escape, on the part of Anson Kemp, Collector and Magistrate, Orren J. Kemp, Magistrate, and Orren B. Kemp, Clerk of the Magistrate's Court, of Bailiff Wells, and of one Carpenter, keeper of the International Hotel.
We respectfully request the Honourable Commissioners to read the testimony of Mr Ā. M. Clark, pp. 39 and 40 of depositions for claimants.
Of Carlas C. Burton, pp. 45 and 46.
Bennett H. Young, and two others, told Clark “that they delivered all the money over to the Canadian authorities that they had taken from the banks, as soon us they had crossed the line into Canada.”
One of the raiders told Standish that there was 10,000 or 15,000 dollars of the raid money in the shed of the International Hotel at Frelighsburgh, under one of the plates; and I went then into the shed with one of the officers of the Canadian Government, and counted the money, and took it from the place where it was secreted ; and Saunders sent an agent from Montreal, and got the money. That Orrin J. Kemp, the Magistrate, and Kemp, the clerk, and Wells, the bailift, recommended him (Standish) to Young as a suitable person to carry despatches from Young to C. C. Clay and Saunders in Montreal; that he (Standish) went and advised with Kemp, the Magistrate, and Wells, the bailiff, as to whether it would be safe for him to go, and they advised him to go, and he went.
A. L. Hall, p. 50, says, that in the spring of 1865, after the raiders were finally discharged, one of them, Wallace, came to Frelighsburgh, for the purpose of having Kemp divide the money that he left with him the fall before; stopped at my hotel, and went with two other strangers to see Kemp; claimed that he left with Kemp from 6,000 to 10,000 dollars ; could not tell the exact amount. Kemp claimed that 600 dollars was all that Wallace left with him. It was finally settled by Kemp paying Wallace 600 dollars.
Standish (p. 74) says, that one Swager, one of the raiders, came out and claimed, and got a large sum of Kemp.
We insist, that when magistrates, bailifts, and collectors of customs refuse, when called upon in their official capacity, to do their official duty, but connire and collude with the raiders to conceal stolen property from its rightful owners, hold it for months, and finally give it back to the raiders, and the Government takes no steps to prosecute them for such crimes, that the Government
should make good to the rightful owners thereof the losses which they have thereby sustained [Torrance Report, p. 56).
This criminal conduct of all the Magistrates and leading men of that community, strikingly illustrates the strong popular sympathy for the Southern cause which prevailed in Canada.
Mr. Seward's Thanks.
It will be found that all these courteous letters and despatches from Mr. Seward refer to the conduct of Lord Monck and the Canadian Ministry after the Lake Erie outrage. Not a line can be found from Mr. Seward, thanking the Canadian Government for their conduct during the summer of 1864, and prior to the Lake Erie outrage.
In November 1863, when the Dorion Ministry was in power, and Lamothe went to Mr. Holton, in Montreal, to advise with the Ministers how to prevent the raid, and when Lord Monck communicated to Mr. Seward, on the 11th of November, 1863, the information he had received, the honourable conduct of Lord Monck and the Ministry in that matter was fully appreciated, and gratefully acknowledged.
On the 30th March, 1864, the Dorion Ministry went out, and the Cartier Ministry came in. From that time till the Lake Erie outrage, 16th September, 1864, although Mr. Seward called the attention of the Canadian Government serreral times to the unusual activity of the Confederates, and their plans for raids, no reply from Lord Monck or the Canadian Ministry can be found, nor any expression of thanks from Mr. Seward.
The Canadian Ministry during that whole summer never used a measure of precaution or prevention.
Sir George Cartier cites a passage from Mr. Seward's letter of October 24, 1864, where he says, “ We are not only able, but obliged to acknowledge,” &c. This was written after the St. Alban's raid, on receiving the first imperfect accounts of it.
But we beg the Commissioners to read the whole of that despatch. It comraences by saying, “The insufficiency of the British Neutrality Act was anticipated early in the existing struggle, and that Government was asked to apply a remedy, by passing an Act more stringent in its character. It proceeds to give notice, in conformity with the Treaty, that at the end of six months the United States will deem thems:lves at liberty to increase the naval armament on the lakes; and it closes by again repeating that “the British policy of neu rality failed, especially in the British Colonies, and must continue to fail more conspicuously every day;" and, saying again, “It is not for us to indicate the means Her Majesty's Government should adopt to maintain neutrality on the border,” requests further legislation, and more stringent measures.
There is no doubt on one point, that Mr. Seward took pains to thank the British Government, and the Canadian authorities, whenever he had the smallest opportunity to do so, either for what was done or promised. It tended to maintain kindly feeling, and to encourage our neighbours in well-doing.
But a reference to his despatches will show that these courteous expressions never intimate acquiescence in the British policy of neutrality; and are confined to special acts and occasions, or to assurances of zeal and good intentions to preserve neutrality; and never either withdrew our well-founded complaints and requests, or recognize a compliance with thein.
We especially refer to Am. Dip. Corr. 1865, part 1, p. 181. Mr. Seward to Mr. Adams, under date of February 21, 1865.
We quote one extract from the despatch as follows —
“We have borne from subjects of Great Britain at home the virtual destruction of our foreign trade, and the feeding and arming of the insurgents from British ports and warehouses. We have maintained free trade and intercourse with the British subjects who dwell in Canada until we have become unsafe on the border lakes and rivers. Our money was plundered from the banking houses on the frontier, and all the hotels of the city of New York were simultaneously fired by incendiaries having shelter and protection in the British Provinces. These perils and wrongs were incurred after three years of earnest and vigorous but unsuccessful warning an remonstrance.
“ It is thus seen that we have had not one, but many just causes of war against Great Britain. Nevertheless we have not made war, but have only discontinued reciprocal trade, and imposed some restrictions upon intercourse, reserving the power to relax or increase them as the course of Canada and the British Goverment should become friendly, or grow more hostile and injurious.”
The polite language of Mr. Seward to Sir George Cartier, while he was a guest in his house, is urged as proof that Canada had always used due diligence. The Commissioners will give it the weight it deserves. How large a period of time did Mr. Seward intend to cover by the word “throughout ?"
Of the Defence. We cannot anticipate the grounds upon which the defence will rest.
1. Will they say that the Canadian authorities were not bound to act spontaneously to prevent these raids ?
The decision at Geneva · has settled the law to the contrary. (Count Sclopis, pp. 60, 61.) Even Sir Alexander Cockburn says(See his opinion, Geneva Arbitration, vol. 4, part 2, p. 266)—“It is incumbent on a Government, 1st, that it shall use due diligence to inform itself, by the use of the means at its disposal, whether a violation of the law was about to be committed.”
So, Sir Roundell Palmer, as quoted by Count Sclopis( p. 64): it should “act upon suspicion, or upon moral belief going beyond suspicion.”
But the point is immaterial, for Mr. Seward in June and in August, 1864, called their attention to the movements of the insurgents.
Coursol and Ermatinger must have known all the movements and general schemes and plans of the refugees. It is believed that both of them knew of the St. Alban's raid. They certainly knew of raids about to be entered upon secretly against villages on the frontier; and if they did not actually know of the St. Alban's raid, it was because, in their official position, and with their partiality, they did not wish to know of it.
2. Will the defence say Great Britain is not liable, because “ the means as its disposal,” viz., its own laws, were not adequate to prevent the raids?
1. That was a ground of complaint by our Government from the beginning to the end of the war, and the British Government was frequently and constantly asked to adopt legislation adequate to the evil, and “measures of greater stringency." Greater pertinacity on the point might have subjected them to Lord Palmerston's reproach, that they were trying to drive the English Government to change its laws to please another Government.
2. Sir Alexander Cockburn in his opinion, and Sir George Cartier in his testimony, say they had the adequate means in the existing laws.
3. “ The duties of the neutral power can not be determined by the laws which that power may have made in its own interest.”
Opinion of Count Sclopis, p. 59 :
4. The British Government has admitted the contrary. Mr. Cardwell, the Foreign Secretary, writes to Lord Monck under date of December 3, 1864, (See Book C, page 59
"These violations of neutrality are a grave offence against the British Crown; and Her Majesty's Government are of opinion that the Government of the United States have a clear right to expect that the Canadian laws shall be found in practice generally sufficient, not merely for the punishment, but also for the suppression and prevention of those border raids.” [Book“ C.,” page 59.]
The passage of the Act of February 6, 1865, by the Parliament of Canada, is an admission to the contrary.
Judge Torrance likewise says—[Torrance Report, page 58]—" I cite the above two propositions, because I am of opinion that the Government of Canada is responsible to that of the United States for the acts of Mr. Coursol and Mr. Lamothe, and it appears to me that granting to the St. Alban's raiders the status of belligerents, and as such the right of asylum in this province, there might be the obligation on the part of the Government of Canada to restore the booty brought by the belligerents.'
3. Will the defence say that the raids were clandestine incursions which they were not bound to prevent ?