Where is that doctrine of the law of nations recorded which binds neutrals to prevent only expeditions undertaken openly, and excuses them from efforts to ferret out and prevent secret conspiracies and raids?

The distinction is untenable.

In practice all such expeditions are started in secret, and become open and known to the world only when it is too late to prevent them.

The security lies in the practice which all Governments adopt by proper measures of observation and detection, and by the use of agents and detectives to find out the plots, arrest or expel the plotters.

Will the defence say that the raid in this case was so secretly planned and conducted that no means of diligence could have discovered and prevented it?

On the contrary, for reasons already stated, from the desperate and talking character of those engaged in it, from their numbers and from the publicity of their actions and speeches, it would have been easy and not difficult for the Government officials to have known all about it. We can not resist the evidence that Coursol and Ermatinger did know of it.

The opinions of Mr. Lamothe, the Chief of Police in Montreal at the time, and of Coursol, that if proper measures had been taken the plans of the raiders would have been find out and frustrated, are worth much more than my argument.

Agent and Counsel for the United States, &c.

Respectfully submitted May 31, 1873.

APPENDIX No. 60.

No. 1.-The First National Bank of St. Alban's v. Great Britain.

BRIEF FOR DEFENCE.

ON the afternoon of the 19th of October, 1864, a party of persons numbering about twenty, appear to have assembled in the village of St. Alban's, situated near the boundary line of the United States and Canada, in the State of Vermont, and there committed acts of violence and plunder, indemnity for which is demanded of Her Majesty's Government in the present claims. These persons, limited as their number was, do not appear to have entered St. Alban's in a single body, or at a single time, nor is it pretended that they exhibited any military array or equipment on such

entrance.

Kidder, a witness for claimants, says (p. 56), “I was a clerk of the American House (St. Alban's) at that time.

*

The raiders, when they came, were not disguised in any way, nor were they in uniform when they came; the only uniform I saw when the raid commenced were belts and revolvers." This witness also states: "I think I saw two of the raiders about ten or twelve days before the raid, at the American House, St. Alban's, and recognized them on the day of the raid." There was, I think, five came and stopped at the American House on the train from the north, on the day of the raid, which train arrived about noon of that day, and four came the evening before."

Kingsley (p. 23) says: "I saw some of the raiders at my billiard saloon near a fortnight before the raid; two or three would come into the saloon at a time, and play a game of billiards; some of them were stopping at the American House, and some at the Tremont House.'

Mr. Albert Sowles, cashier of the First National Bank of St. Alban's, says (p. 3, dep.): "The raiders were armed with navy revolvers about a foot an a half long, which they carried in holsters worn around their necks, under their overcoats."

On the whole evidence there does not appear to have been anything in their appearance or deportment, up to the moment of the acts of violence on the afternoon of the 19th of October, calculated to distinguish them from ordinary strangers, or to attract the attention of any inhabitant of St. Alban's, or to arouse suspicion as to their intended movements.

The brief for the claimants describes the affair as lasting about thirty minutes, at the end of which time the raiders were all mounted on horses with which they had provided themselves in St. Alban's, and galloping towards Canada. The citizens of St. Alban's were soon in hot pursuit, and arrived at Frelighsburg, a little village in Canada, about half an hour after the raiders, who, the brief states, dispersed at that point.

(For the view taken by the Government of the United States at the time, both as to the St. Alban's raid, and the action of the Canadian authorities in the premises, see Part II, Dip. Corr. 1864, pp. 341, 344-6; and Mr. Seward's letter of the 21st of October, 1864, p. 750.)

The raiders were, however, promptly arrested, to the number of about fourteen, and taken before Judge Coursol, of Montreal, a Judge of the Sessions of the Peace for that city and district, and Government Superintendent of Police, whose jurisdiction as such Superintendent had theretofore been extended so as to embrace the whole frontier bordering on Vermont and New York. Whether that functionary did or did not err in holding, on the 13th December, 1864, when all the evidence and arguments were before him, that he had no jurisdiction for the extradition of the raiders; or whether he pondered long before reaching his conclusions of law, or reached them with precipitancy, seems to have no bearing whatever on the question upon which alone the fate of these cases must depend, viz: whether according to the principles of the law

of nations Great Britain was guilty of culpable negligence, or was in any manner wanting in the discharge of the duties of neutrality, in not preventing this hostile and predatory invasion of the territory of the United States? Equally irrelevant to the cases of these claimants is the question whether Judge Smith, before whom the raiders, or some of them, were afterwards taken on a subsequent arrest, did or did not err in law, in holding that the acts imputed to the prisoners were not within the extradition provisions of the Treaty of 1842, but were belligerent acts, and not merely the crimes of private persons.

It would be an unjustifiable consumption of the time of this Commission to discuss either of the questions suggested by the decisions of these two judicial functionaries. The question before Judge Coursol was one of the construction of a Statute of the Imperial Parliament in respect of which lawyers may well differ (Dep. Sir J. McDonald, p. 35, Deps. for Defence), but there is nothing whatever in the case to justify any suspicion that the judgment of this functionary was not honestly pronounced according to the best of his ability.

It may not be amiss, however, to call the attention of the Commission to what is said in the brief for these claims in respect to Judge Smith's decision. "The decision of Judge Smith," says the Counsel for the claimant, at p. 9, "and of the British Government treating it (the St. Alban's raid) as an act of belligerence binds us, as well as them, to treat the raiders as belligerents before this tribunal."

Undoubtedly, the robbery and violence committed at St. Alban's, were committed under orders from the so-called Confederate Government, as will more fully appear in a subsequent part of this paper. In this sense they were belligerent acts as distinguished from the crimes of murder and robbery provided for in the Treaty of 1842. But the acts themselves, in their attendant circumstances and characteristics, and so far as concerns the responsibility of the defendant in these cases, cannot be distinguished from similar predatory incursions undertaken by private persons of their own accord from motivos of plunder and revenge. Let us therefore enquire briefly what is the duty of a State in respect of such incursions. The law upon this subject is well stated by Phillimore after reviewing the antecedent publicists, vol. 1. chap. 10, pp. 230 to 232. If the raiders had been subjects of Great Britain, resident within her territories, such an incursion by them would not necessarily or prima facie impose any obligation upon the sovereign to make indemnity for their acts. The two conditions of knowledge and sufferance are absolutely necessary, the one not being sufficient without the other to communicate any share in the guilt. (I Phill., 231.) "Now it is presumed that a sovereign knows what his subjects openly and frequently commit," nevertheless (in the language of Vattel, cited with approbation by Phillimore), "il serait injuste d'imputer à la nation, ou au souverain, toutes les fautes des citoyens, on ne peut donc dire, en général, que l'on a reçue une injure d'une nation, parcequ'on l'aura reçue de quelqu'un de

ses membres (on ne peut imputer à la nation les actions des particuliers"). These principles are not directly denied or apparently questioned or doubted in the arguments filed by the United States in support of these claims; on the contrary, the burthen is assumed of showing complicity, or such negligence as amounts to complicity, on the part of Her Majesty's Government.

Of

The matter of fact which lies at the foundation of the whole theory of these claims is that the raid was organized in Canada, and proceeded thence into the territory of the United States. It is remarkable that there is so little evidence on this subject furnished by the United States, and that what there is, is altogether inconclusive, leaving it entirely uncertain, whether the organization, such as it was, took place in Canada or in the United States. course the defence cannot be expected to exhibit any evidence on this point, since it utterly disclaims any knowledge or suspicion on the subject prior to the assembly of the raiders at St. Alban's. On the part of the United States it is simply shown that a considerable number, variously estimated, of refugees from their own territory, who were or had been implicated in the rebellion, were residing in different parts of Canada for some time prior to the raid on St. Alban's, and that two at least of these refugees (Messrs. Thompson and Clay), were high in the confidence and favour of the so-called Confederate Government, and by it invested with large discretionary powers, and the control of funds to a very considerable amount. It cannot be pretended that the mere fact of permitting such refuge or asylum of itself involved any violation of the law of nations. However bitter the feud or unrelenting the persecution which such refugees may have escaped, it has never been held that such asylum may not be lawfully permitted them, or that the presumption of an intention to violate the obligations of just neutrality arises upon that fact merely. No fact appears in the evidence tending to show that the conduct and deportment of these refugees as a body were other than entirely consistent with a due regard to these obligations. As to the few persons engaged in this raid, it is not shown that they ever assembled in Canada, or that any considerable number even of that few were commorant in Canada at any time before the raid. Kidder, the clerk of the American House of St. Alban's, states that five of the raiders arrived on the mid-day train from the north on the day of the raid, and four on the train of the evening before. It is to be noted, however, that the fact of the arrival of these men by this train, known as the Canada train, does not prove them to have come from Canadathe fact of the junction of the direct line from Chicago with the Canada train, a few miles above St. Alban's, making it quite possible for them to have come from Chicago. It is sufficient for the present purpose, however, to say that the fact of organization in Canada is not shown on the part of the United States, but that all the facts in evidence are quite consistent with the hypothesis that the plan was concocted elsewhere, and that these men were engaged for its execution, not in Canada, but within the boundaries. 2 x

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of the United States. The fact that Mr. Thompson and Mr. Clay were all the time residing in Canada, and that Lieutenant Young was subject to their control, sheds no light upon the question of the Locality of the organization. As to Thompson, the claimants themselves have shown (see his Letter, Proofs for the claimants), that "he knew nothing whatever of the raid on St. Alban's until after it transpired." As to Clay, it is shown by the Memorandum furnished by him to Young, that he (Clay) simply approved Young's suggestion for a raid upon the accessible towns of Vermont, and authorized and required him to act in conformity with that suggestion. From this Memorandum it would appear that the plan was formed by Young, and that he was simply furnished with a formal approval by Clay, in order that his authority from the Confederate Government might be evidenced. Mr. Clay also furnished him with 400 dollars towards defraying the expenses of the raid, thus practically adopting it as the act of the so-called Confederate States. But there is nothing in these facts tending to show the organization or assembling of the raiders in Canada. They are equally consistent with the hypothesis that such organization took place elsewhere. Indeed, a small circumstance which appears by the testimony of one of the claimant's witnesses, seems inconsistent with any other supposition than that these raiders had never assembled anywhere. Mr. Albert Sowles, (at p. 21 of his Affidavit, Mem. No. 1), says: "We succeeded in arresting two men at Farnham, in the Province of Canada, upon whose persons we found moneys, and photographs of other men, whom I identified as men I had seen at St. Alban's at the time of the raid." Why should these raiders be going about with photographs of their companions? Not, certainly, in order that Mr. Sowles should identify the photographs as those of men belonging to Bennett Young's party, but obviously that the raiders on whom they were found might recognize their companions on meeting them at St. Alban's.

In this connection it may be noted as remarkable--if the theory of the claimants be well founded-that no single fact has been ascertained tending to show that the raiders, or any one for them, purchased, or were supplied with arms or ammunition, anywhere within Her Majesty's Dominions. If such had been the fact, it cannot be doubted that it would have been discovered and proven. The arms, as we have seen, are described as navy revolvers, about a foot and a half long." If twenty or more weapons, corresponding at all to this description, had been purchased, or otherwise procured, in Canada, it is hardly credible that some evidence of such a fact should not have been found either by the Canadian police, or by the claimants or their emissaries, or by the officials of the United States.

In the absence of any proof of facts entitled to weight before this Commission, the United States rely upon the conclusions of Lamothe and Rynders, and the alleged admissions of opinions by Judge Coursol.

Let us examine, first, the testimony of Lamothe and Rynders bearing on the point under consideration.