I received, a few hours since, a despatch from John Russell Young, esq., the managing editor of the Tribune, in which I am informed of the facts and which are fully corroborated by other testimony in my possession. Mr. Kelly was, when taken, unarmed, and I am candidly informed that there is no evidence in the possession of the authorities of this government showing the slightest complicity on his part in the attempted invasion or any other breach of the laws of this province. On the other hand, Mr. Kelly is ready to prove and show most conclusively the peaceful character of the business which induced him to come into the provinces. On learning of the facts in Mr. Kelly's case, I immediately called upon the committing magistrate, but not finding him either at his place of business or at his residence, I proceeded to the jail, for the purpose of having an interview with the prisoner, but was informed by the jailor that strict orders had been given him to admit no one without a permit. Receiving such permit this morning, I had an interview with Mr. Kelly, who made a written statement, sworn to before me, embodying the facts as above mentioned. He further informed me that he was not allowed the privilege of purchasing for his use the necessary food which his wants require at the present time. Under these circumstances, Mr. Kelly, as a citizen of the United States, has a right to demand, and does demand, either his immediate release from arrest or an immediate examination, when he shall have an opportunity to prove his innocence. I therefore request, in behalf of my government, that his demand be complied with without any unnecessary delay. I have the honor to be, very respectfully, your obedient servant, His Excellency Lord MONCK, JOHN F. POTTER, United States Consul General, B. N. A. P. Governor General of the B. N. A. Provinces, &c., &c., &c. No. 17. Mr. Potter to Mr. Seward. No. 271.] UNITED STATES CONSULATE GENERAL, B. N. A. P., Montreal, June 15, 1866. SIR: Since my despatch of last evening, Mr. Joseph Kelly, together with the other prisoners brought to this city on Monday last from the frontier, have been removed to a place called Phillipsburgh, some seventy-five miles east of Montreal. This was done early this morning. The first information which I had of the removal was a telegram received from Mr. Kelly this afternoon, dated at St. Armands, informing me that he was there in the custody of the Canadian authorities, and was to be examined or tried immediately. After the delivery of my note to Colonel Ermatinger to Mr. Schiller, the deputy Crown clerk, and who was acting for Colonel Ermatinger in his absence, I had heard nothing further in relation to the matter. It will be observed that the removal of Kelly took place after I had made the alternative demand upon the governor general for his discharge or his immediate examination, and also after I had received the answer to my demand, in which he informed me that Colonel Ermatinger had been requested to examine into Mr. Kelly's ease, and desired me to present to Colonel E. whatever evidence I had in relation to the matter. I had also informed the governor general that I had in my possession evidence that convinced me of the entire innocence of Kelly. The governor general did not, of course, suppose that I could or was expected to follow Mr. Kelly to any and every place where the caprice or whim of the government might lead them to take the prisoner. The residence, office, and place of business of Colonel Ermatinger are in this city, he being joint clerk of the Crown. Of course, the reply of the governor general to my despatch could have meant nothing else than that the examination would be here, for here the prisoner has been brought, and here the governor general supposed Colonel E. to be when he sent it. I had received not the slightest intimation from any one that Kelly was to be removed from the jail in this city. Ex. Doc. 42- -2 Regarding the course pursued by the government of Canada as trifling with the right of an American citizen, and as treating with manifest contempt the demand made by the government through me for the discharge or speedy trial of Kelly, I to-day addressed a despatch to the governor general, a copy of which I herewith transmit. After the demand was made on Kelly's behalf, and especially after the gov ernor general's reply, pointing out the course by which he might be relieved from imprisonment, I insist that the Canadian government had no right to remove him beyond the protection which with the evidence in my possession, and which was available for his defence here, I could have extended to him. This has been done, and without excuse or explanation, or even an intimation to me of such intention. I therefore consider the course I have pursued as justifiable and proper, and I have the utmost confidence that I shall be sustained by my government. Awaiting the instructions of the department, I have the honor to be, very respectfully, your obedient servant, United States Consul General, B. N. A. P. Hon. WILLIAM H. SEWARD, Secretary of State. Mr. Potter to Lord Monck. UNITED STATES CONSULATE GENERAL, B. N. A P., SIR: I have the honor to acknowledge the receipt, on the afternoon of yesterday, of your excellency's telegram in reply to my despatch of the 13th instant, in which you inform me that Colonel Ermatinger has been "desired to inquire into the case of Mr. Kelly," and requesting me to lay before him any information which I have. On receiving the telegram I immediately addressed a note to Colonel Ermatinger asking him to inform me at the earliest possible moment when and where I might have an interview with him for the purpose mentioned. I was informed that Mr. Schiller, the assistant clerk of the Crown, to whom the note was delivered, and who was made acquainted with its contents, said that Colonel Ermatinger was not in town, but would return in the course of a week. Mr. Schiller was informed that the matter admitted of no such delay; upon which he promised that the note should be despatched to Colonel Ermatinger, saying that he would receive it this morning. I had waited patiently until this evening, hearing nothing further from either Mr. Schiller or Colonel Ermatinger. I have now learned from a telegram received an hour since from Mr. Kelly, the prisoner, that he is now in custody of the provincial authorities, at Phillipsburg, C. E. As he was in the jail here last evening, he has of course been removed by the order of the Canadian government, either during the night or this morning. I have received no notice whatever of his removal, or of the intention of the authorities here to remove him. Mr. Schiller, the assistant clerk of the Crown, was aware of the nature of the reply which your excellency made to my despatch. He was also aware that I had, in behalf of my government, demanded the release of Mr. Kelly as a citizen of the United States, or an immediate examination. I informed your excellency, in my despatch of the 13th instant, that I had evidence of Kelly's entire innocence. Notwithstanding this, he has been removed to a remote place and out of my protection, thus changing entirely the position of the prisoner with reference to myself, from what it was when the demand was made. This act of the authorities having the custody of Kelly, I regard as a violation of his rights as an American citizen, and as manifesting a contemptuous disregard of the demand made for Kelly by the government of the United States. I shall, therefore, refer the whole matter, with all the facts connected with it, to the gov ernment at Washington. In the mean time, unless some satisfactory explanation shall be made, without unnecessary delay, of the course pursued, and unless I shall receive further instructions from my govern. ment to the contrary, I shall deem it my duty to close this consulate general for all business except with American citizens who may be in Canada. I have the honor to be, very respectfully, your obedient servant, His Excellency Lord MONCK, Governor General of the B. N. A. Provinces, &c., &c., &c. JNO. F. POTTER. No. 193.] No. 18. Mr. F. W. Seward to Mr. Potter. DEPARTMENT OF STATE, Washington, June 20, 1866. SIR: Your despatch of June 15, No. 271, has been received, together with its accompaniment, which is a copy of a note which you addressed on the day before mentioned to his excellency the governor general of the British North American provinces, concerning the case of James Kelly, who then was in arrest upon suspicion of his being implicated in recent disturbances of the peace on the Canadian side of the border. It gives the President pleasure to learn from another source that the case of Mr. Kelly was investigated by the Canadian authorities, and that he was discharged without unreasonable delay. The tone of your letter to the governor general was more excited than seems to have been necessary, and I am obliged to disapprove of that portion of it in which you informed him that, subject to certain conditions, you had concluded to close the consulate general for all business except with American citizens who might be in Canada. With the advantages of speedy communication with this department by telegraph as well as by mail, it is believed that no occasion can arise in which a proceeding so important, and of a character so unfriendly, will need to be taken without special directions from the President. If a case should seem to arise requiring such a proceeding, it would be announced by him directly to the government of Great Britain, and not through the agency of a consul. I am, sir, your obedient servant, JOHN F. POTTER, Esq., United States Consul General, Montreal. F. W. SEWARD, Assistant Decretary. No. 19. Mr. Potter to Mr. Seward. [Telegram] MONTREAL, C. W., June 22, 1866. Hon. WILLIAM H. SEWARD, Secretary of State: I have been officially informed of the release of Joseph Kelly. No evidence could be found against him. JOHN F. POTTER, United States Consul General. No. 20. No. 6.1 Mr. Averell to Mr. Seward. UNITED STATES CONSULATE GENERAL, SIR: I have the honor to transmit, by this day's mail, an authorized copy of the statutes passed at the last session of the Canadian Parliament, at Ottawa, and to invite your attention to chapters I, II, III, IV, and V, of which those clauses I deem most deserving of your notice are underscored. I am informed by competent legal authority that at the time of the Fenian demonstrations in June last, on this province, by which its people and their government seem to have been seriously alarmed, no law existed in Lower Canada under which the prisoners taken could be indicted, and that, therefore, on the 8th of June, an act, chap. II, was assented to, which, it was believed, would reach such cases. But it appears from chapter 3 that the said act was subsequently found ineffective, and consequently amended on the 13th of August, the ex post facto character of which amendment will not escape your observation. I have sought in vain for a precedent for these acts of the Canadian government, under which citizens of the United States are held, and are to be tried as felons for acts which, at the time of their alleged commission, were not, by the laws of Lower Canada, criminal or unlawful. Sixteen persons, some native-born and some naturalized citizens of the United States, are now confined in the lower dungeons of the jail of this city, and are to be tried next week at Sweetsburg, in the district of Bedford, for a violation of those laws which were made after their capture. Several are mere youths, not over 18 years of age, and two others were federal soldiers during the recent war, and have honorable discharges. In personal appearance they are all respectable, and do not exhibit any of the characteristics of criminals; for several months they have been deprived of liberty, and their lives are soon to be placed in jeopardy. Any citizens of the United States who were soldiers during the war of 1812, and participated in the actions on the Canadian border, could be seized and tried under the provisions of these acts, should they visit this province, with the same propriety and justice as the men now held. I have ventured to request your attention to Chapter V, in order to make you aware of the terror and apprehension which pervaded this government, and the want of confidence it had in the people of the provinces at the time this act was passed, for, it will be observed, it disarms all the people except the estab lished volunteer forces, it not being unlawful for them to train or keep arms. It may have been that anticipations of French Canadian troubles, if confederation be obtained, and works to the prejudice of their interests, may, in part, have induced this act. I have the honor to be, sir, very respectfully, your obedient servant, U. S. Consul General, British North American Provinces. Hon. WILLIAM H. SEWARD, Secretary of State. No. 21. Mr. Seward to Mr. Averell. No. 10.] DEPARTMENT OF STATE, Washington, December 4, 1866. SIR: The Attorney General, to whom the questions raised in your despatch No. 6, of the 28th ultimo, were submitted, is of the opinion that the third section of the Canadian act of August 15th will not be so construed as to bring within its provisions persons who offended against the first and second sections of the act of August 8th, prior to the passage of the act last mentioned. The effect of that amendatory action is simply to extend the benefit of trial by jury instead of court-martial to British subjects, and include those who had been guilty of a violation of the act of August 8th, prior to August 15th, as well as afterwards. "This act" in the third section, as amended by the act of August 15th, means precisely what "this act" means in the original section—that is, the act of August 8th. I am, sir, with great respect, your obedient servant, WILLIAM W. AVERELL, Esq., U. S. Consul General, Montreal. WILLIAM H. SEWARD. No. 22. Mr. Averell to Mr. Seward. UNITED STATES CONSULATE GENERAL, B. N. A. P., Montreal, December 10, 1866. SIR: I have the honor to acknowledge the receipt of your despatch No. 10, together with a communication from Mr. B. Devlin, and to acquaint you with the following facts concerning the citizens of the United States recently held in custody in the jail of this city upon the charges of levying war upon her Majesty. On the 3d instant the prisoners were removed to Sweetsburg, in the district of Bedford, and on the 6th the grand jury presented thirty-five indictments against fourteen of them, copies of which will be forwarded to the department as soon as obtained. One of the prisoners, a Canadian, was discharged, and one, a citizen of Lawrence, Massachusetts, was also discharged. A communication from the latter is herewith enclosed. At a dinner given to his excellency the governor general by the commander of the forces, on the 7th instant, Lord Monck informed me that he had that day ordered the respite of all the Fenian prisoners now sentenced until the 13th of March next. On the 8th I had an interview with his excellency, and expressed my desire to possess myself of exact information concerning the prisoners and the intentions of this government towards them, and also my regret that he had not found himself able to turn over the prisoners when they were taken, to General Meade, and thus have avoided the irritations which have arisen in consequence of their trial. His His excellency informed me that he had received a telegraphic despatch from his government directing him to "spare their lives, but not to fix the commutation of their sentence until further instructions were sent." That when any further instructions were received they should be communicated to me. lordship further stated as a fact which he did not desire published, that he had directed the Queen's counsel, now at Sweetsburg, not to offer any evidence of acts committed prior to the 8th of June last; that he had hoped no bills would be found against them; that copies of the indictments and the proceedings in the cases now pending at Sweetsburg should be furnished me; that he should be most happy to do anything that would gratify Mr. Seward; that at present it would be very difficult to satisfy the people here of the propriety of pardoning those already condemned, and that he expected instructions to cominute their sentence of death to imprisonment. His excellency added that he had received official reports of the death of thirteen persons, subjects of her Majesty, which had resulted from wounds received in defending the frontier, and that the people knowing this would not like to see these prisoners go free. |