The Sun.
London, England, 1865-04-14 00:00:00

SPIRIT or THE PUBLIC JOURNALS.

TIMES.—The elaborate decision of four Canadian
Judges in the ‘‘ Lake Erie case" has been followed
by one of an opposite tenour in that of the " St.
Alban's raiders." The extradition of these persons
on the charge of robbery has been refused by Judge
Smith, but they have been remanded, on the appli-
cation of the prosecution, to another charge of as-
sault with intent to murder. That issue, however,
can hardly be determined by the same Judge on
principles different from those laid down in the
judgment already delivered, and unless the prisoners
should be convicted of an offence against the muni-
cipal law of Canada there is reason to fear that they
may escape justice altogether. We feel no scruple
in openly deprecating such a result. Whatever the
legal obstacles to their punishment, their avowed
acts were absolutely lawless, and a flagrant violation
of our neutrality. Having sought an asylum in
Canada, they crossed the frontier to Vermont in
small parties, pillaged the bank of St. Alban's, fired
the public buildings, used deadly weapons against
all who resisted them, and fled back into Canada
with their plunder. The unjustifiable order issued
by General Dix, and afterwards withdrawn, may
have diverted the public mind for a time from these
facts, but it cannot their nature. The demand for
extradition was made in due course, and proceedings
were promptly taken upon it, but the defendants
pleaded for time to obtain evidence from Richmond.

'This request was granted, and the hearing postponed
for a month, at the end of which they were dis-
charged by Judge Coursol on a technical point
connected with the warrants for their apprehension.
The sequel is well known; the Canadian Government
instituted a new prosecution, and the judgment re-
ported in our American intelligence of yesterday
confirms, on different grounds, the view taken by
Judge Coursol. Some degree of attention is neces-
sary in order to disentangle the material rationes
decidendi in this judgment from the many irrelevant
passages which encumber it. Judge Smith is clearly
of opinion that a robbery within the State of Ver-
mont, or what would have constituted a robbery if
committed in Canada, was brought home to Young
and his associates. The defence, and the only de-
fence, was that this robbery was divested of crimi-
nality by virtue of its being committed under the
authority of the Confederate Government. This, of
course, raised the question so fully discussed in the
case of Anderson and that of the Gerrity—whether
' a magistrate adjudicating upon a demand for extra-
dition is at liberty to go beyond the prima facie
aspect of a crime, and to hear evidence in special
justification of it. Judge Smith held that he was,
and proceeded to deal with the charge on this as-
sumption. He argued that the production of a com-
mission from the Government of a State recognised
by Great Britain as a belligerent covered everything
done under it, and that whereas an Act cannot be
at once private and public, a municipal offence and
a national wrong, the raid upon the St. Alban's
Bank did not fall within the scope of the Extradi-
tion Treaty. Now, without entering into any subtle
examination of the general doctrine that a commis-
sion is conclusive against a charge of murder or
robbery, we cannot but see that a great deal turns
on the character of the commission. We have not

the advantage of having all the facts and documents
before us; but there are expressiOns of Judge Smith
himself which suggest many doubts to our mind. He
does not go so far as to say that a bona fide commis-
sion directly authorising the raid was produced in
court, but rather seems to imply that it may be
inferred from circumstances. Such a commission,
had it existed, would surely have been forthcoming
in the first instance, or at least after communication
with Richmond had been allowed for this very pur-
pose. The judge, indeed, states that Young, after
residing three or four months in Toronto, had gone
to Richmond and received a commission, but was it
a commission empowering him to do what he did in
defiance of international law ? We are without
precedent in point, for Burley, the leader of the
Lake Erie raiders, actuallyproduced two certificates,
the one from Mr. Mallory, the other from President
Davis, both of which were set aside for the very
reason which we have suggested. The latter was a
retrospective sanction of his enterprise as a legiti-
mate operation of war, but indicated that he was
positively directed to abstain from any violation of
neutral rights. If Young's commission was worded
in the same manner, even though it were prospec-
tive, it could avail him little upon any supposition,
but we are really without proof that he had any
written authority to show. If he had, another and
more serious question arises—the question whether
a neutral State can, with a due regard to its own
honour, take cognisance of a commission which can-
not be executed without a gross insult to itself.
Let us assume that President Davis expressly autho-
rised Lieut. Young to collect a marauding party in
Canada, to make that colony the basis of his opera-
tions, and to retreat thither with his spoils. Are we
to accept the reasoning of Judge Smith, and ac-
quiesce in the position that " the moment the act
is acknowledged to be a national one all private
responsibility ceases ?" It is easy, no doubt, to
'imagine cases in which an extreme application of the
contrary rule might work great injustice. Any
military officer, for instance, honestly carrying out
his orders might be hung as a malefactor, unless
protected by the privilege of subordination. But,
then, in order to claim, this privilege, a man ought
at least to be engaged in legitimate warfare, even
though he should exceed his instructions. An ex-
pedition alike unlawful in its inception and in its
execution is a very different thing, and it is for
jurists to consider whether Judge Smith is correct
in declaring broadly that " in no sense can a viola-
tion of neutrality destroy the belligerent character."
Certainly one of the arguments employed by the
learned Judge does not add to the weight of his
conclusion. Because General Dix ordered his sol-
diers to shoot down the plunderers, it does not fol-
low that they were not robbers in the eye of the
law. We have nothing to do with General Dix's
impressions, and there is something ludicrous in
supposing that the legal status of the prisoners could
be affected by them. It would be well if the judg-
ment had stopped here, for the construkctionof
which
extradition treaties in times of war is a
has perplexed the most eminent Judges bottahsoininEinongs-
land and America, and upon which many
areallowed
himself Unfortunately,to
launch
out however,into
topicsotwo opinions.
aJny Judge
upondgep Smith
n it
theh
introduction of which there can
b
offenders,political NVI len
`What
offence,eou the
could
more
s
but
on
o
iex-
press in
moreWh a
improper,c ould b e
tmorehan t
denouncegratuitous,andethn e
policy thereforeo
f whatsur-
rendering
were
n
luenjudicial, than to
ei South had
d prisoners r
b
a conviction oearraigned
political for
any
ea xstirmAltet di charge,
n o.noftnrtootbhbas eat ry y
the
rights ?
te unable
tsoupspeeolrtvhoa of
itsWe are quitgood end could be served by importing
into the case the distinction bet.ween a rebellion
and a civil war, or by protesting against flying in
the face of the Queen's proclamation " to suit the
political purposes of the North," or by predicting
that Great Britain would be required to pay for all
the damage done by the Alabama and her consorts.
We are not aware that the validity of a Confederate
commission for any purpose that would be justified
by a Federal commission has ever been disputed.
No one has doubted, because no one can doubt, that
a Canadian Court is bound by the Queen's recogni-
tion of the Confederacy as a belligerent Power, or
that acts of war performed in its legitimate service
are not criminal acts. To harp on these truisms
with emphatic allusions to the domineering spirit of
the United States strikes us as purely mischievous,
and if the close of the judgment is faithfully reported