The Portland daily press., 1865-05-09
Judge Smiths Decision,

The decision of Judge Smith, and the rea-
sons advanced in support of 1t, read very like
the judgment of law to be-, that mere militia
ry commisson to acts of war authorize the
holder OF that commission to take up his abode
in neutral state, depart thence in disguisel- 4
not in any uniform enter q aneighboring state,
fall like robber upon unsuspecting persons,
shoot them, take their property, burn their
dwellings, fee back over the border, and
when arrested and arraigned for robbery and
, ieIonious assault, escape by simply producing
a commission. II this is law, il is not com
mon sense. Mr.. Davis has no right to give q
special or a general commission to anybody to
make war from neutral territory. The mere
fact that a person who commits felony holds a
commission in an army cannot make his act
of felony an act of war. In order that the
contrary should be held as valid doctrine we
must assume that Mr.. DAVIS can authorize his
soldiers to organize expeditions from neutral
territory; in other words, that he is q joint
sovereign in Canada with Queen Victoria
This is not the case of a political refugee. -
Lanigewickz invaded Poland from sGalicia
he returned to Gallicia and the Austrian Gov
ernment would not give him up. But Langie-
wickz held no commission from any govern
ment. BE was an insurgent, and when he
failed as an insurgent he found refuge where
he sought it. II Gen. Lee, or Gen. Early, or
Colonel Moseby were to seek refuge in Ber-
muda, or Jamaica, or Canada, there would be
no pretence for demanding his surrender un-
der the extradition treaty, because they
would be real political refugees. Young and
his associates do not come within the catego-
ry. They did not make war in the United
States like Lee or Early. They made pred
atory incursion from neutral territory, which
no commission can be equitably held to jusu-
fy. We are at loss to see how any neutral
stale can recognize the existence of any com
mission under which person does acts con-
trary to the law of the nentfal state and iDjl-
rious to the subjects of an adjacent and friend
~ state. II Judge Smith has laid down the
law correctly, then 1t is surely high time that
the law should be brought into harmony with
equity and common sense.
As to the political reflections which the
Montreal Judge imported into his Judgment
they are not only extra judicial, but highly
discreditabe to him. It was highly improper
to regard the accused, even for moment, as
what they were not, political refugees. Either
they were lawful belligerents, or they were
felons. They could not be both belligerents,
having all the rights appertaining to that char
acter, entitled by the simple fat Of Mr.. Davis
to make war from British territory, and be at
the same time political refugees free from at
taint of felony. Yet from the speech of Judge
Smith, ,if 1t be correctly reported, we are OBJ
lidged to onclude that be ordered the prison
ers to be discharged onthe double ground that
they were belligerents with right to make
war from neutral territory, and at the same
time political refugees. seeking shelter in
neutral state, and entitled to hospitality. It
is impossible not to feel that the Judge allow
ed his feelings as an individual to override his
duty as judge. The weakness ofhhis case is
forcibly shown BY his assertion that what he
deemed to be an incorrect exposition OF the
law by United States judge actually put an
end to the extradition treaty itselfl It is sat
isfactory to know that the Canadian Govern
ment has refused to recognize the decision of
the Montreal Judge as final, and has instituted
further proceedings against the prisoners and
it Is to be hoped that the judges who win have
tojudge In this case will have more regard to
their duties as expounders of the law than to
their private sympathies with either of the
contending bellgerents. Te1st . ..s,,