Robert Burley to Edward Cardwell, September 8, 1865
Mr. Burley to Mr. Cardwell.
Sir: I take the liberty to draw your attention to the case of my son, Bennet G. Burley, who was extradited to the United States on 2d February last, by the Canadian government, and who still lies there imprisoned, no decision being yet come to on his case. He held the commission of an “acting master” in the Confederate States navy, and was taken prisoner by the Federals in May, 1864, escaped from Fort Delaware on the following July, went to Canada on his way back to Richmond, and was engaged in the attempt to release the confederate prisoners confined in Johnson’s Island, Lake Erie.
He took his departure from Detroit, a United States port, when entering on the expedition, which only resulted in his party capturing the United States steamers Philo Parsons and Island Queen; and afterward landing in Canada, where he was arrested by the authorities of that colony, and arraigned on several false charges in connection with these captures, air of which broke down in the Toronto courts, when, as a last resort, the charge of robbing the purser of the steamer Philo Parsons of $20, and as false as the others, was made the pretext of his surrender. His acts in connection with these captures were ratified and assumed by the confederate government, and were (when taken in connection with a war undertaking) generous and humane, no person being injured, and personal property scrupulously respected.
He was tried on 11th July last at Port Clinton, Ohio, on the above-mentioned “charge of robbery,” and after a day and a half’s proceedings, the jury (notwithstanding a highly favorable charge by the judge) did not agree to a verdict, and he was sent back to prison to wait another trial, unless bail to the amount of $3,000 be deposited.
His defense has already been carried through at great expense; a new trial must necessitate a repetition of this, if he is to have counsel at all; and this is more than can be provided for him again by his relatives and friends.
From information that has reached me, it appears clear that a sum of money as bail to be forfeited is what is wanted by those who hold him in custody—a sort of ransom, in fact.
I have brought his case, on several occasions, under the notice of the foreign office; but as the authorities of Upper Canada were the chief instruments in compassing his extradition, which, in view of all the circumstances of his case, must be acknowledged to have been contrary to precedent, and a violation of international law, I deem it right to bring his case before the colonial office, in the hope that the authorities therewith connected may see fit to adopt means to effect his release as reparation, in part, for his unjust surrender, either by providing the bail or forfeit, which appears to be the chief thing wanted, or by engaging counsel for his defense on his next trial, which takes place about the middle of October. I have already stated that neither can be provided by me, or other relatives or friends, although a contrary belief and expectation appears to prevail in the quarters of his imprisonment.
I append a letter which appeared in the Toronto Leader, during his trial in Canada, giving a correct statement of the circumstances attending the captures.
I also append a summary of the United States judge’s charge to the jury on the occasion of my son’s trial on 11th July last, which, notwithstanding its favorable tenor, had no effect on a prejudiced jury.
I am, &c.,
Summary of Judge Fitch’s charge in the case, of Bennet G. Burley.
The evidence was clear, and the participation of the defendant was clearly proven, but the theft must be found to have been made with felonious intent; the intent was one thing, and the act another.
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A confederate government existed, and engaged in carrying on war; that said confederate government had appointed the defendant an “acting master “in her navy, * * * and in obedience to the orders of his superiors he had committed an act for which he was now arraigned.
A state of war existed between the Federal Government and the confederate government, so called, and it made no difference whether the United States Government admitted it or not, the rights of belligerents must be accorded them; the charge was only applicable to a state of war.
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As a soldier of the Confederate States government, he had a soldier’s right to capture the steamer, and appropriate her, and any money belonging to her, to the cause of his government.
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An expedition may have all the force gotten upon the territory of a neutral power that it would if gotten upon an enemy’s territory; the going on the boat in disguise made no difference. Men must have authority for taking the lives of persons. A de-facto government could give it; no difference how frail the government, it has the ability to grant such privileges.* * * He had a right, if commissioned, to take the boat, money, or other property, for the furtherance of his government.