Petition of Richard Baker Caldwell., this 12th day of January, 1871

Petition of Richard Baker Caldwell.

To his excellency and lordship the governor-general of the Dominion of Canada:

The humble petition of Richard Baker Caldwell, of Prescott, in the county of Grenville, in Ontario, in the Dominion of Canada, respectfully represents:

That your petitioner has been, ever since the month of May, 1869, a resident, with his family, at Prescott, aforesaid, engaged in establishing the business of manufacturing boards and shingles, and that his family still there resides.

That your petitioner was forcibly taken from his said residence upon a warrant issued by his honor Alexander MacNabb, police-magistrate at Toronto, upon the information and complaint of Albert Duane Shaw, of the city of Toronto, American consul, stating that your petitioner was guilty of the crime of forgery, committed within the United States of America.

That said charge of forgery was entirely false, and was cunningly devised and intended for the purpose of bringing your petitioner within the limits of the United States of America, so that he might be held amenable for certain alleged offenses which were not extraditable under the provisions of the Ash burton treaty.

That, after the arrest of your petitioner upon said charge of forgery, and after hearing the evidence offered by said A. D. Shaw to substantiate said charge, your petitioner was, upon said charge, and by the authorization of your lordship, in pursuance of the provisions of the treaty between Her Britannic Majesty and the United States of America, commonly called “the Ashburton treaty,” ratified August 9, 1842, providing for the extradition of persons charged with certain offenses, extradited and delivered over to the authorities of the United States, as by the certificate of the said police-magistrate, hereunto annexed, will more fully and at large appear.

That your petitioner, ever since he was so forcibly taken out of the Dominion of Canada, has been confined in a jail in the city of New York.

Your petitioner further humbly shows that the charge of forgery made against him, under which he was taken from his family and home in Canada, and brought to and confined in a gaol in New York, is wholly false, and is made colorable only by the oaths of witnesses who acknowledge that they committed the crime, and say that your petitioner was an accessory or accomplice with them.

Your petitioner further humbly shows that ever since he was so brought to New York he has been anxious to be tried upon the charge for which he was so extradited.

That an indictment has been found against your petitioner in the circuit court of the United States for the southern district of New York, for the alleged offense under the acts of Congress of the United States of bribing officers of the Customs and of the Internal-Revenue Departments, and that he is about to be tried for said alleged offenses, which said offenses, your petitioner is advised, do not fall within said treaty known as the Ashburton treaty, or any other treaty between Great Britain and the United States of America.

That your petitioner, being called upon to plead to said indictment, did interpose a plea to the jurisdiction of said court in the words following, to wit:

“That said Richard B. Caldwell, having heard the indictment against him read, says that this court ought not to take cognizance of the offense in said indictment specified, because, protesting that he is not guilty of the same, he nevertheless says that at the time when he was arrested and brought within the jurisdiction of this court he was a resident of Prescott, in the province of Ontario, Dominion of Canada, and was brought into the jurisdiction of this court on a charge of forgery, under the provisions of the treaty between Her Britannic Majesty and the United States of America, commonly called the Ashburton treaty, ratified August 9, 1842, providing for the extradition of persons charged with certain offenses, and that the offense specified in said indictment is not one of the offenses mentioned in the said treaty, and that this court has no jurisdiction in the premises.

“And this he, the said Richard B. Caldwell, is ready to verify; wherefore he prays judgment, if this court will or ought to take cognizance of the said indictment, and that he may be dismissed and discharged.”

That a demurrer was interposed in behalf of the Government of the United States, wherein and whereby the facts in said plea stated were admitted, and that the said court thereupon rendered an opinion and judgment upon said plea and demurrer, of which an exemplified copy is hereunto annexed; and while your petitioner humbly craves your lordship’s attention to the whole of said opinion, he particularly prays attention to the following passage therein contained:

“The prisoner was brought within the jurisdiction of the United States by virtue of a warrant of the executive authority of a foreign government, upon the requisition of the executive department of the United States; and while abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise.”

Your petitioner further shows that he is advised by his counsel, and believes, and therefore respectfully submits, that it has always been the decision and determination of the governments of Great Britain and the United States of America not to permit any person to be taken from the territory of either to be put upon trial in the other except for the particular offenses specified in their mutual treaties, and that the authorities and cases in support of this position are quoted at large in “Forsyth’s Cases and Opinions on Constitutional Law,” published at London, 1869.

That it is in violation of the law of nations, and of the spirit, and true intent and meaning, if not of the very language, of the treaties between Great Britain and the United States, that your petitioner has been taken from his home in Canada, upon pretense that he was guilty of a crime for which he might properly be extradited, and is now put on trial for an alleged offense for which extradition could not have been demanded or permitted.

Your petitioner, therefore, humbly prays your lordship to ask of the Government of the United States of America that it do not permit your petitioner to be tried for any other offense than that upon pretense of which your lordship allowed the warrant for extradition, or at least not for any offense upon charge whereof your lordship would not have allowed said warrant of extradition to issue.

Also, that the said Government of the United States of America may grant to your petitioner an early trial for the offense whereof he was charged and extradited, and of which he avers himself innocent; or if said Government cannot or do not within a reasonable time establish that your petitioner is guilty of an offense for which his extradition could be properly demanded, then that said Government cause your petitioner, at their own expense, to be returned to his home at Prescott, in Canada.

And your petitioner, as in duty bound, will ever pray, &c.

United States of America, State of New York, City and County of New York, ss:

Richard Baker Caldwell, of Prescott, in the county of Grenville, in the province of Ontario, in the Dominion of Canada, being duly sworn, doth depose and say that the foregoing petition is in all respects true in substance and matters of fact.