Hamilton Gray to Lieutenant Governor Gordon, January 14, 1864

Mr. Gray to Lieutenant Governor Gordon.

May it please your Excellency: In the communication from Captain Moody of the 2d instant, by your excellency’s commands, in answer to my application for copies of the requisition and documents laid before your excellency by the United States consul, upon which your warrant to arrest certain parties engaged in the taking of the Chesapeake was based, he stated your excellency would consult the law officers of the crown, and give me a reply with the least possible delay.

The preliminary investigation on behalf of the American government having closed, we shall be expected to-morrow to disclose to the police magistrate the grounds on which the application of that government is resisted on behalf of the prisoners. Towards that purpose, Mr. Weldon and myself both consider the papers laid before your excellency, copies of which have been required by me, as of the utmost importance, and we are so clear as to the right of the prisoners to that information, based upon the highest judicial decisions in the court of the United States, arising out of this very treaty, that we would feel we were not discharging our duty were we not to take all those steps which the law will permit to obtain them.

Such papers can in no respect be confidential. They are the legal initiatory steps which are necessary to clothe the tribunals of this country with the power of action. A right to test the jurisdiction before which a prisoner is arraigned in a case so exceptional as the present is undoubted. And in case of a commitment for surrender by the examining magistrate, and a subsequent inquiry into that commitment by habeas corpus, these preliminary steps are scrutinized by the judge and pronounced sufficient or insufficient, as to him may seem right.

In a matter, therefore, which involves not the liberty only, but perhaps the lives of the three prisoners, we are sure your excellency would condemn their counsel if they were to permit themselves to be restrained by any false delicacy from omitting to get before the examining magistrate the documents they think essential to their defence.

We believe that the court has power to issue a subpœna to your excellency to bring those documents before it; and with the highest respect for your excellency personally, and the exalted position you fill, we must ask the court for that subpoena unless they are furnished.

We do not apprehend that the counsel for the United States government would require your excellency to be personally present, and we should be content with copies, it the court will admit them. I address your excellency at this time because, not having received the reply referred to by Captain Moody, and being compelled to act, we must take those steps which the prisoners’ rights demand. We have also to request that your excellency will produce or furnish the original commission constituting the court for the trial of piracy and murder and other offences committed on the high seas, dated at Westminster, April 11, 1829. A copy of this I got from Judge Parker, but the magistrate may require the original.

I have, &c.,

J. HAMILTON GRAY.