Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part II

Mr. Adams to Mr. Seward.

No. 700.]

Legation of the United States, London, May 26, 1864.

Sir: I have the honor to transmit copies of the Times of the 25th and 26th inst., containing a report of the final proceedings in the Court of Queen’s Bench on the application for the rendition of the pirates in case of the Joseph L. Gerrity. As usual in the case of English law decisions, the result turns upon technical construction of language rather than on broad principles.

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, Secretary of State, Washington, D. C.

Court of Queen’s Bench—Westminster, Tuesday, May 24, 1864.

In the matter of Ternan and others, prisoners in the jail at Liverpool.

This was the case of the three men who had been arrested and committed to jail at Liverpool, on the warranty of Sir George Grey as home secretary, on the requisition of Mr. Adams, the American minister, on a charge of piracy alleged to have been committed by the prisoners and others, in seizing an American merchant vessel on the high seas. They had, it will be recollected, taken passages on board the ship as she lay at Matamoras laden with cotton and bound for New York, and when the vessel was seventy miles from that port, in the Bay of Mexico, they rose on the crew, seized the ship, and took her to Belize, where they abandoned it and sold the cargo. The three prisoners were seen at Liverpool by the master, who also had come there, and he at once applied to the American minister, who addressed himself forthwith to Sir George Grey, claiming their arrest and delivery up to the American authorities as pirates under the American extradition treaty act of 1843. That act, upon which the question turns, is as follows. It enacts :

“That in case requisition shall at any time be made by the authority of the said United States, in pursuance of and according to the said treaty, for the delivery of any person charged with the crime of murder, or assault with intent to commit murder, or with the crime of piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of the United States of America, who shall be found within the territories of her Majesty, it shall be lawful for one of her Majesty’s principal secretaries of state, or in Ireland for the chief secretary of the lord lieutenant of Ireland, and in any of her Majesty’s colonies or possessions abroad, for the officer administering the government of any such colony or possession, by warrant under his hand and seal, to signify that such requisition has been so made, and to require all justices of the peace and other magistrates and officers of justice within their several jurisdictions to govern themselves accordingly, and to aid in apprehending the person sojaccused, and committing such person to jail, for the purpose of being delivered up to justice, according to the provisions of the said treaty; and thereupon it shall be lawful for any justice of the peace, or other person having power to commit for trial persons accused of crimes against the laws of that part of her Majesty’s dominions in which such supposed offender shall be found, to examine upon oath any person or persons touching the truth of such charge, and upon such evidence as, according to the laws of that part of her Majesty’s dominions, would justify the apprehension and committal for trial of the person so accused if the crime of which he or she shall be so accused had been there committed, it shall be lawful for such justice of the peace, or other person having power to commit as aforesaid, to issue his warrant for the apprehension of such person, and also to commit the person so accused to jail, there to remain until delivered pursuant to such requisition as aforesaid. That upon the certificate of such justice of the peace, or other person having power to commit as aforesaid, that such supposed offender has been so committed to jail, it shall be lawful for one of her Majesty’s principal secretaries of state, or in Ireland for the chief secretary of the lord lieutenant of Ireland, and in any of her Majesty’s colonies or possessions abroad for the officer administering the government of any such colony or possession, by warrant under his hand and seal, to order the person so committed to be delivered to such person or persons as shall be authorized in the name of the said United States to receive the person so committed, and to convey such person to the territories of the said United States, to be tried for the. crime of which such person shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the person or persons authorized as aforesaid to hold such person in custody, and take him or her to the territories of the said United States, pursuant to the said treaty; and if the person so accused shall escape out of any custody to which he or she shall be committed, or to which he or she shall be delivered as aforesaid, it shall be lawful to retake such person in the same manner as any person accused of any crime against the laws of that part of her Majesty’s dominions to which he or she shall so escape may be retaken upon an escape.”

Then there is a provision that if the prisoner shall not be claimed in two months he shall be discharged. Under this act the American minister claimed the extradition of the men as “pirates,” and Sir George Grey, on the sworn information of the master, issued his warrant as follows :

“To her Majesty’s justices of the peace and other magistrates and officers of the peace in and for the borough of Liverpool, and to all other her Majesty’s justices of the peace and other magistrates and officers of justice within the United Kingdom of Great Britain and Ireland: Whereas, on the 15th day of February, 1864, in pursuance of a treaty between her Majesty and the United States of America, made on the 9th day of August, 1842, and ratified on the 10th day of October in the same year, and of an act of Parliament passed in the session holden in the 6th and 7th years of her Majesty’s reign, entitled ‘An act for giving effect to a treaty between her Majesty and the United States of America for the apprehension of certain offenders,’a requisition was made by Charles Francis Adams, esq, the United States minister at this court, to deliver up to justice certain persons called or known by the names of James Clements, T. Wilson, Daniel O’Brien, and — Kelly, charged with the crime of piracy on board the schooner Joseph L. Gerrity, of New York, within the jurisdiction of the United States of America, I, therefore, the Right Hon. Sir George Grey, Bart., one of her Majesty’s principal secretaries of state, do hereby, in pursuance of the power and authority given to me as such secretary of state by the said act, require you, and all of you, within your several jurisdictions, to govern yourselves accordingly, and to aid and assist in apprehending the said James Clements, T. Wilson, Daniel O’Brien, and — Kelly, and committing them to jail for the purpose of their being dealt with according to the provisions of the said treaty, and delivered up to justice, pursuant to the said act, if found to be within the same. In witness whereof 1 have hereunto set my hand and seal this 20th day of February, 1864.

“G. GREY.”

And thereupon Mr. Raffles, the stipendiary magistrate of Liverpool, issued his warrant, under which the men were arrested, and which was now returned, in these words:

“11th and 12th Victoria, caps. 42, 43. Warrant remanding a prisoner. Borough of Liverpool, to wit: To the constables of the said borough of Liverpool and to the keeper of the head lock-up house for the said borough: Whereas Warren Quinsey, or Wilson; George M’Murdoek, or Kelley; and John Tevena, or Clements, were this day charged before the undersigned, one of her Majesty’s justices of the peace in and for the said borough, with having committed the crime of piracy on board a certain American ship on the high seas, within the jurisdiction of the United States of America, contrary to the statute in that case made and provided and against the peace, and it appears to me to be necessary to remand the said persons charged: These are, therefore, to command you, the said constables, in her Majesty’s name forthwith to convey the said persons charged to the said lock-up house for the said borough, and there to deliver them to the keeper thereof, together with this precept. And I hereby command you, the said keeper, to receive the said persons charged, into your custody in the said lock-up house, and there safely keep them until the 30th day of April instant, when I hereby command you to have them at the police-courts in Dale street, in the said borough, at 11 o’clock in the forenoon of the same day, before me or before such other justice or justices of the peace as may then be there, to answer further to the said charge, and to be further dealt with according to law, unless you shall be otherwise ordered in the mean time. Given under my hand and seal this 23d day of April, A. D. 1864, at Liverpool, in the borough aforesaid.

“T. S. BAFFLES.”

The men were brought up before the magistrate for examination, and the master was the principal witness against them, and of course proved their seizure of the vessel, &c. But he admitted that the men professed and appeared to act under the orders of a certain Major Hogg, who professed and appeared to act as an officer in the service of the confederate government, and professed to have papers from them to justify his act, and he also admitted that the prisoners at the time said they acted under the confederate government. The magistrate on this evidence doubted whether the case was one of piracy within the act, and remanded the prisoners from time to time to allow of their applying to this court. Accordingly last term Mr. James, Q. C., (with him Mr. Littler and Mr. T. H. James,) obtained on their behalf a rule nisi for a habeas corpus with a view to their discharge, and the rule, after argument by Mr. Lush, Q. C., Mr. Mil ward, and Mr. Lushington, (instructed on behalf of the American minister,) was made absolute. The writ of habeas corpus accordingly issued commanding the jailer to bring up the men, to submit them to the judgment of the court either to remand them or discharge them. He produced them yesterday in court, in obedience to the writ, but as the case could not be brought on, they were sent to Whitecross-street prison, (as provided by statute,) whence they were now brought up for the final and solemn determination of their case. They appeared, by the expression of their countenances, fully sensible of the gravity of their situation and the momentous import of the discussion going on, and to which they listened with the deepest interest.

Mr. James, Q. C., Mr. Littler, and Mr. T. H. James appeared on their behalf, instructed on the part of Mr. Mason, the representative of the Confederate States in this country; Mr. Lush, Q. C., Mr. Mil ward, and Mr. Vernon Lushington appeared, instructed by direction of the American minister, to oppose their discharge.

Mr. James, after judgment in the above case had been delivered, rose and informed the court that the prisoners were present in court, and moved that the return to the writ of habeas corpus be read.

The return was accordingly read by the master of the crown office. It set forth the depositions taken before the magistrates, the substance of which is given above, but only the various warrants under which the prisoners bad been committed and were now detained, for the purpose of being delivered up under the statute.

Mr. James thereupon observed, that, by the omission to return the examinations of the witnesses and the warrant of the secretary of state, the case, after all, was not technically before the court; but his learned friend on the other side had agreed to waive that technical form, and argue the question of law it was intended to raise.

Mr. Lush said he quite assented to that; he took no objection; that was all he could say. Let it be taken, if the court pleased, that the examinations were before the court.

The Lord Chief Justice observed that one great point was, whether the men were committed merely for further examination by way of remand, or were committed for delivery up under the act. How was this to be taken ?

Mr. Justice Crompton also observed that this raised a difficulty, unless it were to be taken that the men were committed to be delivered up.

Mr. James submitted that it appeared that this was so.

Mr. Lush again rose and intimated that, so far as he was concerned, he waived any technical difficulty. Let it be taken that the magistrate had actually committed the prisoners for the purpose of being delivered up.

The Lord Chief Justice observed that he could not see the difficulty, for if the case was not within the act, then the magistrate had no jurisdiction at all in the matter to commit the men in any way whatever.

Mr. Lush assented to that.

Mr. Justice Blackburn. Then, are we to take it that all the evidence available has been given ?

Mr. Lush. Yes. It may be taken that there is no other evidence.

Mr. James. Then, my lord, I move that the prisoners be discharged.

Mr. Lush. On what ground ?

Mr: James. That they are committed for piracy; for piracy jure gentium, and that this is not a case within the treaty or the act. There are other and minor objections which it is unnecessary to enter into if I am right on the main question. They are, I contend, entitled to be unconditionally discharged, as not being rightfully in custody, and not being shown to have been guilty of piracy. Now, as to the first question, whether this is piracy jure gentium, it is enough to say that it is charged as piracy; and that prima facie must mean piracy by the law of nations. If it is meant as piracy by municipal law, it should have been so stated. This court cannot enter into any other kind of piracy. It cannot take judicial notice or cognizance of piracy by the merely municipal laws of other states. This court knows nothing of such laws, and knows only of piracy by the law of nations and piracy by its own law. If it was shown to be piracy by the law of any other country, another question might arise whether it was within the treaty. But that question did not arise, unless it was shown to be municipal piracy, and it was not so shown. Therefore it must be taken, in the absence of any proof of American law on the subject, that this was piracy jure gentium; and as such it was not within the treaty or the act; for the treaty was one of extradition, and its object was to prevent failure of justice by escape of criminals out of the only jurisdiction within which they were triable. But piracy jure gentium, or by the law of nations, was triable anywhere. These extradition treaties all had for their object the security of justice, and they proposed to act by handing over escaped criminals who woulde scape justice if they remained where they were found. Such being the scope of these treaties, they must be construed in that sense. They haa reference only, then, to crimes committed within the exclusive jurisdiction of the country demanding extradition under any such treaties. This view of their construction was, he contended, upheld by the highest American authorities. The learned counsel cited 1 Kent’s ‘Commentaries, 8th edition, p. 36, where the reason for the doctrine given was, that otherwise the criminal might go unpunished. Now, as matter of history, this treaty was entered into primarily for the purpose of fixing the boundary between our territories and those of the United States. Two other objects were the abolition of the slave trade and the extradition of criminals, that is, in cases of grievous crime. And it was very natural, therefore, that when the slave trade was declared piracy the crime of piracy would be mentioned, which would include the slave trade. As regarded piracy, which was only piracy by the law of either country alone, it could not be “justifiable” in the other. Jurisdiction was either territorial or personal, that is, it was either local or grounded on allegiance. It was either jurisdiction within the territory of a state or over its own subjects. The latter, no doubt, extended over the subjects of the state everywhere, and over their property, and of course it would extend over their ships wherever they were. This was the true principle on which that kind of jurisdiction rested; it arose out of personal jurisdiction and personal allegiance. The subject of the state took his ship with him, and allegiance and jurisdiction followed and embraced both.

The Lord Chief Justice. You would not deny that the courts of the United States would have jurisdiction over an American for murder committed on board an American vessel anywhere ?

Mr. James. Certainly not; but the personal jurisdiction carries with it the jurisdiction over the ship. It is because the state has jurisdiction over its own subjects wherever they were. But it did not follow that the United States could, by its own law, make that piracy or murder here, which would not be so by our laws, except as regarded their own subjects in their own ships. One of our own statutes illustrated this doctrine. In the reign of William III we had an act making it piracy for vessels under the authority of James II to commit depredations on British vessels; but that act only applied to British subjects, and a foreigner could not have been treated as a pirate under its enactments. Now the United States, it was stated in Wheaton, had in terms adopted and re-enacted in effect that act of William III, and made it piracy for vessels “under color” of any commission from a foreign state to commit depredations on the ships and subjects of the United States; but it was admitted that this.act only applied to subjects of the United States. Apply this to the present treaty. It plainly showed that the crime of piracy there mentioned must mean piracy as recognized by both nations—not piracy by the law of one of them alone. The terms of the treaty were “deliver up to justice,” not to the authorities of the other country. This showed that the object was to prevent a failure of justice— that is, in cases in which the law and justice of both countries would recognize that without extradition there would be a failure of justice—that is, in cases in which there could not be concurrent jurisdiction. In the case of piracy jure gentium there was concurrent jurisdiction; but in other cases mentioned there was not. In the case of murder, it was by statute that a British subject committing the crime abroad could be tried here; but the argument did not apply to piracy, in which at common law there was concurrent jurisdiction; and could it be contended that in the murder case, if the crime had been committed in America, the extradition of the prisoner could be claimed—delivery up of our own subjects to be tried abroad for a crime equally triable here? Would that for a moment be upheld? Would that really be “delivery up to justice ?” He would be equally amenable to justice here. He would be taken from justice here merely to subject him to justice elsewhere.

The Lord Chief Justice observed, that the argument on the other side was, that in such a case the criminal had escaped from justice in this sense, that all the evidence and the means of proof were abroad, and justice might be certain to fail here.

Mr. James admitted that this might be a good reason for making a treaty to include such a case, but he insisted that the present treaty did not include it.

The Lord Chief Justice said that was the question.

Mr. James observed that the whole scope of the statute was compulsory. It left no discretion. In cases where it applied at all it was absolute, and allowed of no discretion.

Mr. Justice Crompton observed that that was so certainly.

Mr. Justice Blackburn added that there was no provision for the consideration in such a case of difficulties as to evidence, &c.

Mr. James said that was strong to show that the treaty was not meant to apply to cases where there was concurrent jurisdiction, and there happened to be some casual difficulty as to proof. It was a mere accident that there should be any such difficulty. The mere circumstance of the crime being committed abroad did not necessarily raise any difficulty as to proof, for the witnesses might be all here. A strong argument in favor of the same view arose from the provision at the end of the statute, that, in case of failure of demand, in two months the prisoner should be discharged. Could it be supposed that we were to let a man go, criminal and triable in our own courts and by our own law, merely because a foreign state did not demand his extradition? Could so monstrous a conclusion be supported? And yet it logically followed, from the opposite view of the act, that it applied to cases of concurrent jurisdiction. One independent state having concurrent jurisdiction to make its exercise dependent on the will and pleasure of a foreign state! Yet that result, beyond all doubt, would follow the construction contended for on the other side. The learned counsel went on to cite a case in the Supreme Court of America upon this very treaty. That was a case of a demand for extradition of a person for an assault, with intent to murder, committed in Ireland, and the court construed the treaty in the sense he had ascribed to it. “It is a compact between the two nations for the punishment of criminal offenders against their laws, where the guilty parties could be tried and punished only within the jurisdiction whose laws, have been violated.” It certainly was upon a former treaty, but it related to an article pertaining to extradition.

Mr. Justice Shee. The article included murder, but not piracy—not, perhaps, that it makes any difference in your argument.

Mr. James said he thought that it did not. The principle was the same as to the point of concurrent jurisdiction, and it was there laid down distinctly that the article did not apply in a case of concurrent jurisdiction. The learned counsel then referred to a speech in Congress of Chief Justice Marshall upon a case of extradition. The argument in that case was, that where there was concurrent jurisdiction the prisoner ought not to be handed over.

Mr. Justice Shee. That was not upon this treaty, was it ?

Mr. James. No; but it was upon a question of extradition. It was in 5th Wheaton’s Reports, a case of “In re Robins;” and with reference to offences at sea, he laid it down that the jurisdiction of a nation was purely personal. He went on to detine a pirate as an enemy of all nations, and so punishable alike by all; but, he added, that an offence which by its nature only affected a particular nation could only be punished by the courts of that nation, and only on its own subjects. “Piracy, by the law of nations, is punishable equally by all; but no particular nation can increase or diminish the list of crimes so triable.”

Mr. Justice Shee remarked that the case there was one of exclusive jurisdiction.

Mr. James said it was so, no doubt, but the principle was laid down as to concurrent jurisdiction.

The Lord Chief Justice. The case would be far stronger in your favor had the case been one of concurrent jurisdiction.

Mr. James said the murder there, no doubt, was not committed in the United States; but the whole reasoning on the case seemed to apply to cases of concurrent jurisdiction. He contended that the scope of the authorities was to support his conclusion, that these treaties did not apply to cases of concurrent jurisdiction. For that very reason it was usual in these treaties to exclude the subjects of each state from their operation. Why were they excluded? Why did a state decline to deliver up its own subjects? Because there could be no difficulty as to its own subjects, as it could take cognizance of their crimes wherever committed. It was true that for some reason the United States declined to accede to this exemption; but they ultimately did so. For this the learned counsel cited Wheaton on International Law, the great American work on the subject written by Mr. Wheaton, the minister of the United States at Brussels :

“In the negotiation of treaties, stipulating for the extradition of persons accused or convicted of specific crimes, certain rules are generally followed. The principal of these rules is, that a state should never authorize the extradition of its own citizens or subjects, or of persons accused or convicted of political or purely local crimes, but should confine the provision to such acts as are by common accord regarded as grave crimes.—(P. 236.) |The act, it will be observed, specifies the crime of murder, along with robbery and piracy.”

“On the construction of the British treaty of extradition, a crime committed at sea on board an American vessel has been considered the same as if committed on American territory; and, therefore, it was said, was a case for extradition.”

This strongly confirmed his argument.

The Lord Chief Justice. There is certainly great stress laid upon the fact that there is exclusive jurisdiction.

Mr. James. Yes. It seems taken for granted that the test is whether there is exclusive jurisdiction in the state requiring extradition. The learned counsel said this was the main and the most important questions on which it was important to have the decision of the court. There were, however, other points. One of them was this: Supposing it to be not a case of piracy jure gentium, but of piracy by municipal law, and it did not appear that any of the men were American subjects.

Mr. Justice Crompton. It is stated that they were pirates within the jurisdiction.

Mr. Justice Shee. “On the high seas within the jurisdiction.” That is a very different thing.

Mr. James. Just so.

Mr. Justice Blackburn. But if “piracy” means piracy jure gentium, why does it not mean that in the warrant] There no such piracy was shown or Stated. It nowhere appeared upon the proceedings that there was any municipal laws of the United States creating a peculiar species of piracy not so by the law of nations, nor that there had been such piracy committed in point of fact. It was for the parties requiring extradition to show this. For example, this species of piracy only applied to American subjects.

The Lord Chief Justice. Then it will be said the case is out of court, for that the treaty does not apply to that species of piracy.

Mr. James. Just so. And if it is piracy jure gentium, then no such piracy is shown. But further, the warrants are all bad. They show no jurisdiction in the secretary of state to issue his warrant. There must be an original charge in the country demanding extradition, and sworn evidence, and a warrant thereupon issued in America, and all this shown by sworn evidence to the secretary of state in this country; and thereupon he would have jurisdiction to issue his warrant, on which the jurisdiction of the magistrates must depend. The words of the act are: “who, being charged, shall seek an asylum”—that is, first being legally charged, and then escaping. This was quite clear, for the warrant and depositions in America were required to be shown to the secretary of state here. It was only upon that he had jurisdiction to issue his warrant. The warrant to be shown to him meant a warrant issued in the country requiring extradition. It had so been held in America, in a case of an offence committed in Ireland; and, indeed, it was manifest, for the secretary of state was to inquire into “ the truth of the charge”—that is, the charge made in America. There appeared not, however, to have been any such charge in America. There was no trace of any legal formal charge against these men in America.

Mr. Justice Crompton. The case supposed, you see, is that of a man who has escaped from justice. You suppose depositions taken and a charge made in his absence.

Mr. James said he would cite American authority to show that his view of the treaty was correct. He cited from Wheaton’s International Law, p. 242 :

“The United States will not make a demand upon the British government without the exhibition of a judicial warrant upon sufficient proof by the local authority of the state demanding extradition. A mere notification from a foreign legation is not sufficient to justify the preliminary action of the state from whom extradition is claimed.” Now there was nothing here but a mere notification.

Mr. Lush. That is not so. The secretary of state, in point of fact, never acts without sworn evidence, and he had such evidence in this case.

Mr. James. What evidence? Whose evidence?

Mr. Lush. The master’s.

Mr. James. Where taken?

Mr. Lush. I presume at Liverpool.

Mr. James. Then it won’t do. There was no jurisdiction to act at all without sworn evidence and a warranf from America.

Mr. Justice Blackburn. If you are right in your view of the act, of course a deposition taken at Liverpool would not do. But is it so ?

The Lord Chief Justice. If it be so, you see in the case of a murder by one American subject of another on board an American ship in the British channel; if the man escaped before a warrant could be issued, there could be no claim for extradition.

Mr. James observed that this only showed a defect in the act. He went on to submit that the warrant of the magistrate was bad, as it did not appear upon it that it had issued before he had taken sworn evidence.

The Lord Chief Justice asked if this was so in fact.

Mr. Lush said it was not so. There had been sworn evidence taken first.

Mr. James said it was not so stated in the warrants. The magistrate must how his jurisdiction on the face of the warrant. He had not a general right to issue warrants in such eases. It was a special statutable power, and must be strictly pursued. It was a clear principle of law that in any such case the warrant must upon the face of it show that the statutable requisites of jurisdiction had been complied with, or otherwise there would be no jurisdiction. For this the learned counsel cited several English authorities.

Mr. Justice Crompton pointed out that the defect, if it were one, could be cured. The defect was only in the original warrants, and there were subsequent warrants.

Mr. Justice Blackburn. The defect can be cured in half an hour by returning a new warrant.

Mr. James. Well, my lords, I avow that I should be very sorry to succeed on this point, and fail on the other. I now come to my last point, which is, that there is no case of piracy at all. There was no evidence upon which a magistrate, acting within even his ordinary jurisdiction—a fortiori, within this special jurisdiction—could commit for piracy. That which would be piracy under some circumstances was not so in others. Thus the acts which in time of peace would be presumptive evidence of piracy, would not be so in time of war if committed against a belligerent. The case must be viewed as if we were a neutral nation called upon to act as between two recognized belligerents. On the one hand there would be the representative of one belligerent claiming that the men should be delivered up as pirates, and the representative of the other belligerent avowing that it recognized and adopted the act. Surely, then, it became a matter of state, and ceased to be a matter of law.

The Lord Chief Justice. Is there any evidence of such a recognition in this case?

Mr. James. O, my lord, I am only supposing the case to illustrate my argument. It is enough to say that the cause might occur. And if it did, then a neutral power must decline to deliver up the fugitive. In principle there was no distinction in this case. The Confederate States had been recognized as a belligerent; and if it could be shown that the act was done by their authority, this court surely would say it was a case of belligerency, not, of piracy. There was at one time a representative of the southern States in this country, a gentleman named Mason. I (said the learned counsel) have the honor to appear for Mr. Mason, and on behalf of the Confederate States. And I avow, on their behalf, that this was a belligerent act, and one which they recognize and adopt. Prima facie it would appear, even upon the evidence, that the act was done on behalf of the confederates. At the very time of the seizure the men said to the master, “You are to consider yourself a confederate prisoner.” And the men acted under the orders of Major Hogg, who said he had papers from the confederate government. The master himself confessed that he believed the major was in the confederate service, and stated that he was the leader of the party, and that the prisoner acted under his orders entirely—that is, under the order of a man professing and appearing to be an officer in the confederate service. The prisoners said they were sent on board for the particular service, and that Hogg showed them documents signed by a General Bee, and purporting to be issued under the authority of President Davis. Now, surely, under these circumstances, the presumption was that the act was an act done on behalf of a belligerent, and so not piracy. And thus, whether the officer under whom the men acted had a commission or not, were men, under such circumstances, when in this country, without the power of giving further or more regular proof, to be delivered up to the other belligerent to be executed as pirates? It might be true, or it might be false, that the officer had the authority he assumed to have, but how could the men who acted under his orders know that? Prima facie the act of seizing a vessel of a belligerent was an act of war.

The Lord Chief Justice. Is it so where the men get on board as passengers ?

Mr. James. Why not? It is a mere ruse de guerre. It matters not that they were volunteers, or had no regular commission.

Mr. Justice Blackburn said he should like some authority for these positions.

Mr. James said he was prepared to cite such authority. He contended, first, in point of legal principle, that those who acted for and as denizens of a belligerent power, and under its authority, were quasi its subjects, and if so, could not be deemed pirates for acts of warfare on the other belligerent. Suppose a vessel fitted out by a private person without a commission, but in aid of the confederates, depredations by such a vessel on the ships of the federals would not be piracy. He asserted that to be clear. How, then, did it differ the case that two of the men were not subjects or denizens of the Confederate States, and had no commissions ?

The Lord Chief Justice. Suppose that bona fide these men were engaged by an officer they believed to be in the confederate service, then I should be disposed to agree that they could not be treated as pirates. But suppose it was all mala fide, and merely colorable ?

Mr. James. That is not to be presumed. On the contrary, fraud is never to be presumed; it is to be proved. But what proof is there of it ?

Mr. Justice Crompton. The men are not shown to be subjects of the Confederate States.

Mr. James. Nor is it shown that they are not so. And I submit it must be presumed that they are.

Mr. Justice Crompton. The question is whether, it not appearing that they were so, and having got on board the vessel surreptitiously, there was not reasonable evidence for sending them to trial.

The Lord Chief Justice. The real question on this point is, whether on the evidence the magistrate was not warranted in sending the men for trial.

Mr. James contended that he was not warranted. In time of peace, no doubt, the evidence would have been sufficient; but not in time of war, the act of depredation being on a belligerent. The presumption, then, was that the act was one of warfare, otherwise what power had the individual members of the crew of a belligerent vessel found in foreign ports to furnish regular legal proof of the authority of the officer under whom they acted against the other belligerent? Surely the only reasonable rule was that when the act professed and appeared to be done on behalf of a belligerent it should be presumed to be so. In support of this view the learned counsel cited a case from 5th Robinson’s Admiralty Cases, where it was held that prizes taken without commission were liable to be seized by the admiralty as one of the droits of the crown; not that the seizure was piracy, in which case the property would not be altered, and would remain in the owners. If Major Hogg were here, might he not appeal to the authority of that case, in which a ship had been seized without any commission, and yet, as it was the ship of a belligerent, it was not held to be piracy. And if the officer could appeal to our own law in his defence, were the men to be deprived of that defence who had acted under his orders] An officer at a distance from home might naturally venture to act on his own discretion for the benefit of his country. Was he to be treated as a pirate on that account? And if not, were the men who acted under his orders to be so treated? The learned counsel, after urging this topic with great energy, proceeded to quote from Kent’s Commentaries to show that it was only in modern times that commissions were issued, and that states now often took advantage of private cruisers. The passage ran thus :

“It is said not to be lawful to make captures without a commission. The subject has been repeatedly discussed in the Supreme Courts of the United States; and the doctrine of the law of nations is held to be, that private citizens cannot acquire a title to hostile property unless seized under a commission. If they depredate upon the enemy without a commission, they act at their own peril, and are liable to be punished by their own sovereign; ybut the enemy is not warranted to consider them as criminals. As respects the enemy, though such captures without commission are exceedingly irregular and dangerous, and would probably expose the parties to the unchecked severities of the enemy, yet they are not acts of piracy, unless committed in time of peace. * * * * * And thus non-commissioned vessels of a belligerent may capture hostile ships without being condemned as pirates. By the law of nations they are lawful combatants.”

Such was the doctrine laid down by the American courts and the great American commentators.

Mr. Justice Crompton. This was a merchant ship.

Mr. James. That makes no difference. It is clear international law that the subjects of one belligerent may lawfully prey upon the commerce of another.

The Lord Chief Justice. It’will not be denied, probably, that if this were really an act done on behalf of the Confederate States it would not be piracy.

Mr. Lush said he did not at all dispute that.

The Lord Chief Justice. The difficulty is in knowing whether this was really an act done on behalf of the confederates.

Mr. James. A difficulty, no doubt, which necessarily arises in the case of a state recognized as a belligerent, but not as a state. But then the mere misfortune of the belligerent, or the disability of regular proof, could not, in the face of fair and reasonable presumptions, be taken as leaving the parties exposed to the penalties of piracy. The learned counsel went on to cite American authorities, to show that such reasonable evidence as the case would admit of was deemed sufficient in such cases. What else could be the proof in the case of a new or revolted state, which perhaps might have no regular seal, or regular commissions while first fighting for its independence? He appeared there on behalf of Mr. Mason, who had been received and recognized in this country as representative of the southern States.

Mr. Lush objected to this.

The Lord Chief Justice. We, of course, give entire credence to the statement of the learned counsel that he is in fact so instructed. But how are we to take judicial cognizance of the position of any gentleman in this country as representative of a state not recognized as such ?

Mr. James. There is, no doubt, that difficulty. But surely there can be no reasonable doubt, under the circumstances, that these men really acted under the orders of a confederate officer. This country, as a neutral power, was anxious to hold the scales of just neutrality fairly and impartially between the two belligerents in this great contest. And in the converse case of a federal seizure of a confederate vessel, would not the evidence be sufficient to raise the presumption of an act of warfare? But, in truth, it did not lie upon the prisoners to prove that it was so; it rather lay upon the prosecutors to prove that it was not so; for otherwise it could not be piracy, and it was for the prosecutors to make out a prima facie case. In conclusion, after an address which had lasted several hours, the learned counsel said, with emphasis, that the case was one of the most important that could possibly have been brought before a British court, and was one which required, and he was sure would receive, the most careful and anxious consideration.

The junior counsel were then heard on the same side, and they referred to the following authorities in Wheaton:

“The President of the United States, while he, in his proclamation of April 49, 1861, inaugurated a blockade of the so-called Confederate States based on belligerent rights, at the same time declared that any person acting under letters of marque issued under their authority would be held amenable to the laws of the Union for the prevention and punishment of piracy. This act of the American government was thus noticed in a debate in the House of Lords on the 16th of May, 1861. Lord Derby said, If there is one thing clearer than another, it is that, by the law of nations, privateering is not piracy; that no enactment on the part of any one nation can make that piracy as regards the subjects of another country which is not piracy by the law of nations or the law of that country. The northern States, therefore, cannot be allowed to think that they are at liberty to strain the law so as to convert privateering into piracy, and visit it with death.’”

And in this opinion Lord Brougham, Lord Kingsdown, Lord Chelmsford, and the then lord chancellor concurred. Then the author goes on to notice a case in the American court on which the counsel for the prisoners, when the rule was moved, placed great reliance:

“Privateersmen acting under commission from the president of the Confederate States were brought into New York and indicted for piracy. The case went to the jury on the act of Congress, which was intended to apply to piracy, as a substitute for the definition of piracy by the law of nations. The statute, it was maintained, embraced cases of robbery committed on board an American vessel, though they might not come within the definition of piracy by the law of nations. The presiding judge admitted that if it were necessary on the part of the government to bring the crime charged in the present case against the prisoners within the definition of robbery and piracy as known to the law of nations, there would be great difficulty in doing so upon the evidence, for that shows, if anything, an intent to depredate upon the vessels and property of one nation only, which falls far short of the spirit and intent that are said to constitute essential elements of the crime. But the robbery charged in this case is that which the act of Congress prescribes as a crime, and may be denominated a statute offence, as contradistinguished from that known to the law of nations.”

The arrest, however, led to retaliatory action on behalf of the Confederate States, and on the 31st of January, 1862, an order was issued by the secretary of state directing the transfer of all prisoners charged with piracy (including those who had been convicted) to a military prison, for the purpose of exchanging them as prisoners of war. Lord Kussell, in acknowledging (January 24, 1862) to Lord Lyons the receipt of a copy of the judge’s published statement on the question, whether the southern privateers men can Be regarded as pirates, and expressing the satisfaction of her Majesty’s government that the pretension had been so successfully combated, adds:

“There can be no doubt that men embarked on board a privateer having a commission, or of which the commander has a commission, from the so-called President Davis, should be treated in the same way as officers and soldiers similarly commissioned for operations on land. An insurrection extending over nine States in space and ten months in duration can only be considered as civil war, and that persons taken prisoners on either side should only be considered as prisoners of war. Reason, humanity, and the practice of nations requires that this should be the case.”

Mr. Lush, Q. C., (with him Mr. Milward and Mr. Vernon Lushington,) then addressed the court on the other side against the prisoners’ discharge. He first argued that the warrant of the secretary of state, on which the whole proceeding was founded, was good. The statute did not require any “charge” in America in the sense of a formal legal charge, but merely in the sense of an accusation. All that was necessary was that there should be a requisition from the American minister for the delivery up of the parties charged (i. e., accused.) Upon that requisition the secretary of state was bound to issue his warrant, and upon that the magistrate was to issue his warrant for the arrest of the accused; and all he had to do was to act as prescribed by Jervis’s acts, and issue such a warrant as there required. It was the fact, though it did not appear upon the warrant, that the magistrate had taken sworn evidence before he issued his warrant, and the counsel on the other side had overlooked the statute 8th and 9th of Victoria, for the more effectual execution of the extradition act, and in entire conformity with the provisions of which these proceedings had been taken. As to the necessity for proceedings in America, the criminal might have escaped before any could be taken, and when found here, if he could not be arrested until proceedings had been taken in America, he would escape from this country.

The Lord Chief Justice. Upon that point you need not trouble yourself.

Mr. Lush then said he would come to the main question—the meaning of the act. Now, by the international law, it appeared that there was no obligation on one state to deliver over the fugitive criminals of another. Nor, indeed, was there legal power to do so, and the law on this subject was the same in both these two countries. What, then, might be supposed to be in the minds of both contracting parties? The earlier treaties between them did not specify piracy; but, being both commercial countries, they had a common interest in the punishment of that crime. It must be taken that the ministers of both states were well aware that the courts of either could punish piracy wherever committed. All this must have been known to Parliament when it passed this act, which ought to be construed in its natural sense; but on the other side it was sought to give it a forced and strained interpretation, according to which, if these men had been actually arrested in New York, and had been committed for trial and then escaped extradition, could not be claimed. Why? Where was that qualification to be found in the terms of the treaty or of the act? The criminal law of both countries was substantially the same, and the same terms were used. Why, then, should they not have the same meaning? There was no exception in the treaty of our own subjects. The United States had refused to assent to such an exception. Take the case of murder. Suppose a British subject had committed a murder in America on another British subject, (for which, of course, he could be tried here,) could not his extradition be claimed ?

The Lord Chief Justice. Suppose he had been tried here and acquitted. Could the American government claim his extradition to be tried again in America, on the ground that they were not satisfied of the result ?

Mr. Lush. That is an extreme case not likely to occur.

The Lord Chief Justice. But you must admit it is possible it migtit occur.

Mr. Lush admitted that. But, after all, the American law, like our own, admitted the principle that a man could not be tried twice for the same offence, and he could plead his acquittal; but it is not to be supposed that in such a case the government of the United States would claim the extradition.

Mr. Justice Crompton. Suppose he was about to be tried here, could we not try him? I cannot see why we should not.

Mr. Lush proposed to deal with that point.

At that point, however, the court adjourned.

Court of Queen’s Bench—Westminister, May 25.

Sittings in banco, before the Lord Chief Justice, Mr. Justice Crompton, Mr. Justice Blackburn, and Mr. Justice Shee.

IN THE MATTER OF TERNAN AND OTHERS, PRISONERS IN THE AIL OF LIVERPOOL.

The arguments in this case were continued. It is the case of the habeas corpus obtained on behalf of the men arrested and detained at Liverpool as pirates, on the warrant of the home secretary, on the requisition of the American minister, on account of their seizure of a merchant vessel of the United States in the Gulf of Mexico. The interest of the case has considerably increased since it was announced yesterday that the counsel who appear on behalf of the prisoners for their discharge are instructed by Mr. Mason, as representative of the confederate government, which in this way avows and adopts their act, the counsel on the other side being instructed by the direction of the American minister. The prisoners, with others, got on board the vessel as passengers at Matamoras, and about seventy miles from that port they rose on the master and crew in the night, turned the master adrift, seized the ship, and took it to Belize, a port in British Honduras, where they abandoned it. They were found last February to be in Liverpool, and the master (who also had come there) applied to the American minister, and he made a requisition to Sir George Grey, under the American treaty extradition act of 1843, which binds the governments of both countries on such a requisition to deliver up to justice parties who, being charged with certain crimes, among which are piracy, robbery, and murder, committed within the jurisdiction of the state claiming their extradition, shall seek an asylum or be found in the territory of the other state. Upon this requisition (without, it would appear, any evidence on oath, for the date of the master’s deposition is some days later) Sir George Grey issued his warrant to the magistrates of Liverpool, reciting the requisition, and directing them to “govern themselves accordingly,” and cause the parties to he arrested and confined, with a view to their delivery up to justice, according to the act. Upon this the master made a deposition before the stipendiary magistrate at Liverpool, who then issued his warrant, under which the men were arrested. Upon the hearing of the case it appeared, on the evidence of the master himself, that the men had acted under the orders of a Major Hogg, who professed and appeared to be in the confederate service, and it was insisted that therefore their act could not he piracy. The magistrates from time to time remanded the men, to enable them to apply to this court to have that question determined, and a habeas corpus had accordingly been obtained on their behalf with a view to their discharge from custody, it being admitted that the case against them was entirely closed, and that they were now detained merely for the purpose of their being delivered up to the American authorities. Mr. James, Q. C., (with Mr. Littler and Mr. T. H. James,) yesterday argued on behalf of the prisoners, declaring distinctly that he was instructed by Mr. Mason, the representative of the southern confederacy, which avowed and adopted the prisoners’ act as an act of war on the behalf of the confederacy; and they argued that the case was not in any sense one of piracy, since pirates depredated on the property and ships df all nations, being “ common enemies of the human race,” and preying indifferently on the ships of all nations, whereas in the present instance it appeared that the men were directing their depredations against the ships and property of the subjects of the federal or United States. On the part of the prisoners it was further urged that it was not piracy by the law of nations, and that even if it were so it was not within the treaty, because triable in our own courts, and so not within the meaning of an extradition treaty; but that if it was not so it was nothing at all; and that, even though it was piracy by the municipal law of the United States, that was not piracy within the treaty, for that otherwise we might be called upon to deliver up even our own subjects to be hanged in America for acts venial or even justifiable by the law of our own country.

Mr. Lush, Q. C., (with him Mr. Mil ward and Mr. Yernon Lushington,) instructed on behalf of the American minister, yesterday commenced his argument against the discharge of the prisoners, and to-day continued it. This, he said, was the first time the question as to the construction of the treaty had arisen directly in the courts of either country. He contended that the offence in this case was “committed within the jurisdiction of the United States,” being committed on board one of their ships, and he should contend, if necessary, within their exclusive jurisdiction, because for this purpose the American ship was like American territory.

The Lord Chief Justice observed on the change of expression in the next clause of the sentence—“found within the territory” of the state from which the extradition is claimed.

Mr. Lush thought that was in favor of his view. “Jurisdiction” had a larger meaning than “territory.” The jurisdiction of a state extended beyond its territory, as in the case of ships.

The Lord Chief Justice. Surely this case is “within our jurisdiction,” for we could try it.

Mr. Lush. No doubt, in that sense, it is “within our jurisdiction;” but it is, in a stronger sense, within the jurisdiction of the United States, for it was committed within their quasi territory. It is not necessary to contend that it is exclusively in their jurisdiction. The word “exclusive” is not in the treaty or the act. Most of the crimes mentioned in the treaty—arson, robbery, forgery—are such as, if committed in America, would not be within the jurisdiction of our courts; and murder is so only by reason of a British statute, and in the case of a British subject. According to the argument on the other side, the United States could not claim extradition of an American subject for the murder of an American in this country. In a certain sense, no doubt, that would be “within our jurisdiction.” But surely in a far higher and stronger sense it would be within the jurisdiction of the United States. Then as to piracy. What did the word mean? Why, prima facie, it meant the crime of piracy by the law of nations. Both nations understood and used the term in that sense, and both agreed as to what it meant in that sense. On the other hand, each nation, by its own law, made acts piracy which were not piracy by the law of nations. Thus, robbery on board a British ship was not piracy in America, but on an American ship it would be. The primary meaning of the term “piracy” was the meaning common to both countries, and that was the sense in which it was here used.

The Lord Chief Justice. Would it not also include piracy created by statute, so far as the statutes of both countries agree?

Mr. Lush. Possibly it would. At all events, I am not concerned to dispute it. Probably the term “piracy” in the treaty comprises all kinds of piracy common to the laws of both countries. But it does not include piracy merely by the municipal law of either country, so far as it is peculiar to that country. What was murder here was murder in America; so of arson, so of robbery, and why not so of piracy? In the French treaty, where one of the terms, “murder,” was used in a peculiar senses it was explained.

Mr. Justice Shee. Because in the French language there is no term to express “murder” as it is meant in our law.

Mr. Lush. Just so. And so if piracy here were meant in any peculiar sense it would be explained—as, for instance, if it was meant to include piracy in American ships in American waters. But this was a case of piracy in an American ship on the high seas, which was within the jurisdiction of the United States.

Mr. Justice Crompton. Surely the term “jurisdiction “must be construed in some fixed sense, not a sense floating and fluctuating.

Mr. Lush. Then you exclude all cases of crimes committed on board of ships ?

Mr. Justice Crompton. Not so; but it excludes cases, like this, of depredations upon ships in distant seas. Take, for instance, a case of that kind in the Chinese seas, near an English settlement. All the reasoning upon convenience—the presence of the witnesses, &c.—would go to show that the place of trial should be the English settlement, not necessarily the distant country of the owner of the ship.

Mr. Lush. If it were piracy, it would be in the common jurisdiction of all the countries.

Mr. Justice Blackburn. But there may be a robbery on board a ship which is not a piracy jure gentium; it is only acts of depredation on the ship, and interference with that, which amount to piracy by the law of nations.

Mr. Lush. That cuts down the meaning of the word “piracy” in the treaty.

Mr. Justice Blackburn. No. It goes to show that the sense in which the word is there used is not the sense of piracy jure gentium.

Mr. Lush. The term has a common meaning in both countries; why should it not be supposed to be used in that sense? And in that sense it was committed within the jurisdiction of the United States. The learned counsel proceeded to cite from Wheaton in support of his position:

“Both the public and private vessels of every nation on the high seas, out of the territorial limits of any other state, are subject to the jurisdiction of the state to which they belong, and Vattel says that the ships of a country are part of its territory.”

The learned counsel likewise referred to other passages in Wheaton which he contended were in favor of his position.

“The judicial power of every independent state extends, with the qualifications mentioned—1. To the punishment of all offences against the municipal laws of the state by whomsoever committed within the territory. 2. To the punishment of such offences, by whomsoever committed, on board its vessels on the high seas, and on board its foreign ships in foreign ports. 3. To the punishment of all such offences by its subjects, wheresoever committed. 4. To the punishment of piracy and other offences against the law of nations, by whomsoever and wheresoever committed.”’

“It is evident that a state cannot punish an offence against its municipal laws, committed within the territory of another state, except by its own citizens; but it may arrest its own citizens in places not within the jurisdiction of any Other nation, as the high seas.”—(Pages 230, 231, last edition.)

“The judicial power of every state extends to the punishment of certain offences against the law of nations, among which is piracy. Piracy is defined to be the offence of depredating on the seas without being authorized by any sovereign state, or with commissions from different sovereigns at war with each other. The officers and crew of an armed vessel commissioned against one nation and depredating upon another are not liable to be treated as pirates in thus exceeding their authority.”

“The state by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of its authority.”— (Page 247.)

“Unfortunately, in applying the term piracy in the codes of different countries, regard has not always been had to the fact whether the offence described is one against the law of nations, and consequently everywhere justiciable, or a crime for which the nomenclature has been arbitrarily adopted, and which is cognizable only before the municipal tribunals of the particular state,” and which is cognizable only before the municipal tribunals having jurisdiction either territorial, actual, or implied, or over the person of the offender. The South American publicist, Bello, says:

“There can be no doubt about the competency of the legislative authority of a state to establish laws regulating the mode of proceeding against pirates; nor is it important against whom or in what place an act of piracy has been committed, because it is subject to the jurisdiction of any power whatsoever. But no sovereign has the right of qualifying as such those acts which are not comprehended in the definition of the crime as generally admitted. A government, however, can declare that this or that offence perpetrated on board its own vessels is a piratical act. The American Congress declared, in the year 1790, that every crime committed at sea, which, if committed on land, would be punishable with death, was piracy. Nevertheless, as this law goes beyond the definition of the crime by the law of nations, it would not render legal the jurisdiction of the American tribunals over acts committed under the flag of another country which are not strictly piratical.”

Upon the act the Supreme Court decided that the crime of robbery committed by a person who is not a citizen of the United States, on the high seas, on board of a ship belonging exclusively to subjects of a foreign state, is not piracy under this act, and is not punishable in the courts of the United States. But they held in a subsequent case that “general piracy or murder or robbery committed upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, by any persons on board of a vesssel not at the time belonging to the subjects of any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government whatever, is within the true meaning of the act, and is punishable in the courts of the United States.” That act provides against citizens of the United States committing piracy or robbery against the United States or any of its citizens on the high seas, under color of any commission from any foreign prince or state, or on pretence of authority from any such person, and declares that such offenders shall be adjudged pirates and suffer death. And though equal effect may-be given to the bona fide commissions of actual belligerents as to those of fully recognized governments, it was held by the Supreme Court, in 1820, that a commission issued by a person calling himself “brigadier of the Mexican republic,” (a republic the existence of which was unknown and unacknowledged) or as “generalissimo of the Floridas,” a province then in possession of Spain, would not authorize armed vessels to make captures at sea, the court saying, “ Whether a person acting in good faith under such a commission may or may not be guilty of piracy, the commission can be no justification of the act in this case;” adding, “the whole transaction, taken together, demonstrates that the ship was not captured jure belli, but seized animo furandi. It was not a belligerent capture, but a robbery on the high seas.” “But in the case of one having a commission from a party to a recognized civil war, no irregularity as to acts done jure belli will make him a pirate. He stands in the same position as if he, held a commission from an established government, so far, at least, as regards all the world except the other party to the contest.”

So Chief Justice Marshall laid it down that the jurisdiction of every country extended not only to its subjects on its territory, but in its ships.

Mr. Justice Shee. Not because the ships are parts of its territory, but because the persons are within its jurisdiction.

Mr. Lush. Within its jurisdiction, because within its quasi territory.

Mr. Justice Shee. That is a very different thing.

The Lord Chief Justice. Because deemed part of the realm of England ?

Mr. Lush. Just so.

Mr. Justice Crompton. Is that so? Before the statute we could not try a British subject for a murder on board a British ship on the seas.

Mr. Lush. There was a mere technical difficulty.

Mr. Justice Crompton. Why, if we could not try him, it was hardly “technical.” The truth is that we had no jurisdiction in such a case at common law.

Mr. Lush thought we had jurisdiction, but there was a difficulty in its exercise. However, to return to the particular case in hand, that of piracy. There was not an iota of authority on the subject. The case cited yesterday on the other side was a case of murder on board an English ship, and the argument was that it was triable in the United States. It was an entire error to suppose that Chief Justice Marshall assented to the doctrince that such a treaty did not apply in cases of concurrent jurisdiction. He says :

“It is argued that the article will not embrace a case of concurrent jurisdiction. It is unnecessary to controvert that, for it is demonstrable that the courts of the United States have jurisdiction.”

The Chief Justice, therefore, by no means adopted the doctrine. So as to the other case, cited yesterday, the case of cutting and wounding in Ireland, the point really did not arise.

Mr. Justice Blackburn. It was not the point decided, certainly.

Mr. Lush. It did not arise, for there was no concurrent jurisdiction, the offence being committed in Ireland on a British subject.

Mr. Justice Crompton. The judges in that case speak of “an exposition of the law” on the subject in their judgments.

Mr. Lush. But the judgments did not turn on that question; there was merely, therefore, the expression of an opinion upon the question. Then as to the argument that the treaty was one for the suppression of the slave trade; he did not quite understand it. The treaty, no doubt, was for the settlement of boundary, and the suppression of the slave trade, and the giving up of fugitives from justice in certain cases.

The Lord Chief Justice. The argument was, that the object of the suppression of the slave trade accounted for the introduction of the word “piracy,” and went to explain its meaning.

Mr. Lush. Bat then the treaty uses the words “jurisdiction or territory,” as if it meant jurisdiction by land and sea, and thus the treaty supports my view of the meaning of words “within the jurisdiction.”

The Lord Chief Justice. I think we must confine ourselves to the statute.

Mr. Lush. Or so much of the treaty as is recited in it, and the recitals of it in this act relate only to the crimes of “piracy,” murder, robbery, forgery, &c, and the escape of fugitives from justice in such cases. The learned counsel went on to notice a Canadian case—the case of the Chesapeake—in which the court laid it down :

“It was doubtless to prevent the failure of justice that would necessarily result from offenders in one country seeking refuge in the other, and there being amenable to no punishment, that this treaty was entered into; and it is not difficult to understand how the crime of piracy in its general sense might come within the operation of the treaty, when a pirate, having gone into one or other of the countries, and so made himself amenable to its courts, and had been there legally charged with the offence, had fled to or been subsequently found in the territory of the other, that in such a case the country where he was first found might claim jurisdiction over the crime and the person so charged. But I am unable to arrive at the conclusion that when the pirate has never, after committing the offence, entered the country of one of the contracting parties, but is found in the territory of the other, the government of the former can assume jurisdiction over the offence and person, and require him to be given up, and so to denude the latter country of its clear jurisdiction in the matter.”

But that reasoning was, he submitted, unsatisfactory; and, moreover, on this question there was no direct decision, so that the case was no authority. He contended that, as to the construction of the act, its terms ought to be construed in their plain, natural, ordinary sense, and in that sense they included piracy, as it was understood in common by the law of both countries; that is, piracy by the law of nations; and in that sense it would include this case. Then as to the facts. Thy sole question was whether there was, prima facie, a case to commit for trial; and he contended that there was. It might be that volunteers, really acting for a belligerent, might not be guilty of piracy.

The Lord Chief Justice. To constitute the crime of piracy the act must be amino piratico, if that is an admissible phrase.

Mr. Lush. No doubt. And I am not sure that even if some among the men robbed for their own benefit, being with other subjects of the Confederate States who were acting as belligerents, 1 am not sure that even then they would be guilty of piracy. But that is not so here; and there was, prima facie, a case of piracy.

The Lord Chief Justice. What is there to show that the alleged ground of seizure, viz., as an act of warfare, was not really so, but was false and colorable ?

Mr. Lush. What is there to show that the pretence was real, and that they seized for the confederates at all ?

The Lord Chief Justice. They said so at the time, and the master said he believed their officer was in the confederate service.

Mr. Lush. But on the whole of the evidence the case was prima facie one of piracy. It was not like a capture by a confederate cruiser such as the Alabama. It was a seizure by passengers, and they sent the master adrift in the open sea.

The Lord Chief Justice. Not under such circumstances as to endanger his life.

Mr. James. It was only nine miles from the shore they did so.

Mr. Lush referred to the evidence and read it. at length, commenting upon the passage on which the prisoners counsel placed reliance, especially the following in the evidence of the master:

“The men appeared to be acting under the orders of a Major Hogg, who said he had papers to justify his acts. I had heard that he was in the service of the confederates; and I believe from his appearance that he was so.”

This was merely his conjecture or impression from the man’s appearance. Could it be said that there was no case for the jury? If so, it was the duty of the magistrate to commit the men for trial. The men had each of them several aliases, and were found at Liverpool in possession of some articles the property of the captain. It was true they said that they had seen papers in Hogg’s hands showing his authority. But what was there to show that this was not really all mere pretence? Whether it was or not was for the jury who should try the case, not for the magistrate, whose duty was only to commit for trial. In conclusion, the learned counsel read verted to what he deemed to be the great Question—the true construction of the treaty. As to that, he said, he need not remind the court that it was a question of deep and paramount importance; nor need he deprecate their deciding it with reference to our relations with America, the fate of the prisoners, or any other consideration than the proper construction of the act, the terms of which, he contended, must be taken in their plain, natural, ordinary sense, and the sense in which they were used in common in the law of both countries.

Mr. Milward was heard on the same side. If, he urged, the word “piracy” in the act did not mean piracy by the law of nations, its primary sense and meaning, what did it mean, and why was the word inserted? For in no other sense was the crime within the common jurisdiction of both countries, and in no other sense was it committed within the law of both countries. The very argument on the other side was, that piracy by the peculiar municipal law of America was not piracy by our law. Thus, therefore, the word “piraey” could have no meaning except piracy in the larger sense—piracy jure gentium, by the law of nations. Unless it was taken in that sense, it had no sense at all in the statute; and as no restrictive words were used, why should it not be taken in that sense? As to the arguments upon convenience or inconvenience, the legislature had dealt with them and disposed of, and had positively enacted that in a case of piracy the criminals should be given up. The matter was left by the act in the hands of the executive governments of the two countries as the heads of justice. The learned counsel proceeded to cite the declaration of the Law of Prize, drawn up by Sir George Lee (an eminent civilian) in 1753, and adopted then, and again in 1794, by our government. He cited it (from Madachlan on Shipping) to show that the law of nations might be altered by treaty, as between the two contracting states. Applying that doctrine to the present case, he argued that, by the force of the terms of the treaty in their plain, ordinary sense, parties charged with the crime of piracy must be delivered up to the country claiming them, provided that there was reasonable evidence of a prima facie case.

Mr. Vernon Lushington followed on the same side, applying himself to the main question in the case, the construction of the act. As to the word “jurisdiction” per se there was, he said, no question. It was argued on the other side, however, that the word should be construed as if the word “sole” or “exclusive” were introduced before it. But if so, surely the words “jure gen-tium” should be introduced after the word “piracy,” and then there would be this solecism—“piracy jure gentium within the exclusive jurisdiction of the United States.”

The Lord Chief Justice. It comes to the same thing whichever way you put it.

Mr. Justice Crompton. The argument is, that if piracy within the common jurisdiction of all nations is meant, it cannot be “committed within the jurisdiction of the United States.”

Mr. Lushington urged, that if the word “ exclusive “were to be inserted to qualify the word “jurisdiction,” words should be introduced to qualify the word “piracy.” He claimed to construe the word “piracy” in its plain, primary, ancient, ordinary sense; and on the other side it was claimed to insert the words “not being jure gentium” after the word “piracy.” But why should those words be taken to be inserted? There were cases in which this country had surrendered pirates to the country on whose ships they had depredated, and in one of these cases Mr. Justice Story said the reason was because the evidence was naturally in that country.

The Lord Chief Justice. Surely the object of the treaty is to prevent the escape of criminals from justice.

Mr. Lushington. No doubt it is one of the objects; but is it the only object? May it not have also in part for its object the more effectual furtherance of justice by preventing failure of justice through possible defect of proof? The learned counsel went on to argue that there was nothing in his view of the act at all to militate against our sovereign jurisdiction. The whole scope of an extradition treaty involved some voluntary concession, on each side, of sovereign rights for the sake of the better furtherance of justice. The scope of the act was simply this, that British pirates should be tried in British courts and American pirates in American courts.

The Lord Chief Justice. But what do you mean by “British pirates,” or “American pirates ?”

Mr. Lushington. Those who commit piracy within British or American jurisdiction.

Mr. Justice Crompton. That involves the whole question. What is “within the jurisdiction?”

Mr. Lushington, Depredating on British or American vessels, as the case may be.

Mr. Justice Crompton. Suppose the same pirate meets and captures on the same day a British and an American vessel. Surely the essence of piracy is depredating on the ships of all nations alike, and the crime is equally against all.

Mr. Lushington. Is it not a peculiar offence against the country whose ships are taken ?

Mr. Justice Crompton. According to the authorities the crime is against all nations, and therefore it is that all of them can try it and punish it.

Mr. Lushington went on to argue that even if we had concurrent jurisdiction, there was no infraction of our sovereign right in the surrender of the prisoners. It might safely be taken that extradition would not be unfairly or unreasonably demanded. The learned counsel went on to allude to some of the observations in the legislature at the time the act passed, but

The Lord Chikf Justice said, Weeannot construe an act of Parliament by the language of those who sat in Parliament at the time it passed.

Mr. Lushington passed on to the terms of the act, insisting that they were to be construed in the largest sense.

The Lord Chief Justice. Suppose something murder by the law of America, but not so by our law.

Mr. Lushington. In that case, no doubt, there ought to be no surrender of the prisoner. The question might have arisen in the case of Anderson if extradition had been claimed. The case was discussed in Wheaton, who thus cited it and commented upon it:

A case arose in 1860 on a demand for extradition, under the English treaty, of a slave charged with murder in the State of Missouri, and who had escaped to Canada. The provincial Court of Queen’s Bench, in refusing to discharge him, held, ‘The whole argument in the prisoner’s favor must rest upon the proposition that he was a slave and killed the person he is said to have done in freeing himself from slavery; and that slavery not being recognized or tolerated in this country, therefore he is not guilty of murder. But that argument is a fallacy, for the two governments, in making the treaty, were dealing with each other on the footing that each had at the time recognized laws applicable to the offences enumerated.’ The decision, however, was rendered inoperative by the subsequent grant of a writ of habeas corpus by the Court of Queen’s Bench in England.”—(Page 242.)

The learned counsel went on to refer to the recent case of the Brazilian pirates, brought here, tried, convicted, and sentenced in one of our courts for piracy in a British ship, and executed here, although they were in custody in Brazil, and liable to be tried there. That, he said, showed that a country might deem it of importance to have extradition of pirates, although they might be tried in the country where they were found or taken.

Mr. James was then heard in reply. Addressing himself, in the first place, to the observations of Mr. Lushington, he observed that it seemed to be admitted that the case, if one of piracy at all, was one of piracy jure gentium. And then the question was, whethe there was evidence of an intent to prey on the ships of all nations, or only on the ships of a belligerent. His learned friends had denied that there was any authority on the question whether acts of depredation on the ships of a belligerent were acts of piracy. But in the work of Wheaton it appeared that the case had come before the American courts, and had been decided in favor of the prisoners :

“Privateersmen, acting under commissions from the president of the Confederate States, were brought into New York and Philadelphia, and indicted for piracy. They were tried in October, 1861, in the United States circuit courts sitting in those places. In both courts, though the indictments included other counts, the cases went to the jury on the 3d section of the act of 1820, which was intended to apply to piracy, as a substitute for the 5th section of the act of 1819, which defined it by a reference to the law of nations. The statute, it was maintained, embraces also cases of robbery committed on board of an American vessel, though they might not come within the definition of piracy by the law of nations. The presiding judge at New York admitted that if it were necessary on the part of the government to bring the crime charged in the present case against the prisoners within the definition of robbery and piracy, as known to the common law of nations, there would be great difficulty in doing so, perhaps, upon the counts, certainly upon the evidence. For that shows, if anything, an intent to depredate upon the vessels and property of one nation only—the United States—which falls far short of the spirit and intent that are said to constitute essential elements of the crime. But the robbery charged in this case is that which the act of Congress prescribes as a crime, and was denominated a statute offence as contradistinguished from that known to the law of nations. The act declares the person a pirate, punishable by death, who commits the crime of robbery upon the high seas against any ship or vessel, &c., and the interpretation given to these words applies the crime to the case of depredation upon an American vessel, or property, on the high seas, under circumstances that would constitute robbery if the offence was committed on land.’—(Trial of officers, &c, of Savannah, p. 371, Judge Nelson’s charge.) As to the defence based on the privateer’s commission, both courts held that they could only look to the declarations of the executive and legislative departments for the political relations of the new confederacy; and they did not imply from the exercise of belligerent rights by the federal government any renunciation or waiver of its municipal rights as sovereign towards the inhabitants of the seceded States.”— (Ib., p. 373; Trial of William Smith for Piracy, p. 96.)

The absence of a regular commission made no difference, and a neutral state ought to presume that the act was one of warfare. If it was not so, at all events that should be shown by the parties claiming extradition. But here there was no evidence of it. The laws of the two countries differed as to piracy, and if the men were surrendered on the pretence of piracy jure gentium, they might be convicted, condemned, and executed for some species of piracy,which was not so by our laws. What evidence was there of real actual piracy? What was there to show that the seizure was not for the belligerents? Prima facie, the act was one of belligerency, for it was professedly so done, and was so stated at the time. The learned counsel went on to argue that the scope of the statute was escape from justice.

The Lord Chief Justice. May there not be an escape from justice in the sense of a failure of evidence?

Mr. James. No doubt; but not in the sense in which the words are used in this act, where they plainly imply an escape by flying from one country to another. There was no power to send* witnesses over from one country to the other, and the witnesses might be here. But the statute was compulsory, and not at all discretionary; no topics of mere convenience, therefore, could be gone into. The enactment was imperative, and in cases where it applied it was absolute.

Mr. Justice Crompton observed that there were inconveniences in that view that we have bound qurselves absolutely in all cases, and must trust to the demand not being made in cases where it would not be reasonable.

Mr. James. No doubt; but, at all events, the balance of convenience or inconvenience may be very doubtful.

The Lord Chief Justice. As a general principle it is more convenient that offences should be tried where they are committed.

Mr. James. No doubt, as a general principle; but how to apply it in cases of piracy? The crime is committed on the high seas, and you cannot try the men there, it is clear. Why not try the men where they happen to be taken or found? Why is the matter more within the country to which the ship belonged? That is begging the question. If the act meant to divest our courts of the power of trying pirates taken here, why, of course, we were bound by it. But was it so? Were not the terms of the statute capable of a more reasonable construction? It was admitted that the other terms—arson, robbery, forgery—meant cases of exclusive jurisdiction; and why, in the case of piracy, make it include cases of concurrent jurisdiction? It was assumed on the other side that murder included all cases of murder; but this he denied, and he urged that it merely meant cases of murder within the exclusive jurisdiction of either country. No doubt the word “murder” must be taken as meaning cases of murder by the law of both countries. But the law of murder differed in the two countries in some cases, as in that of slavery. That was the case of Anderson, referred to by Mr. Lushington. He killed a man to free himself from slavery, and in America it was murder, but in England it was justifiable homicide. His extradition was claimed in Canada, but refused. So an English subject resisting imprisonment, and killing the party attempting it, would be guilty of murder by our law, but not by the law of America. Upon this subject the learned counsel referred to the case of Nash, an impressed American, on which Chief Justice Marshall delivered his opinion on the question. So much for the argument of his learned friend, Mr. Lushington. He submitted that the statute was passed to prevent failure of justice in cases in which, but for extradition, justice must fail. In cases of prisoners taken in this country the courts of this country would administer justice fairly and effectually; and it never could have been intended that this country should surrender prisoners in cases which its courts were perfectly competent to deal with. For these reasons he confidently submitted that the prisoners were entitled to their unconditional discharge.

The court retired to consider their judgment. On their return, being divided in opinion, they delivered judgments seriatim.

The Lord Chief Justice. The main and principal question for our determination in this case is what construction is to be put upon the statute of the 6th and 7th of Victoria, cap. 76, which gives effect to the treaty between the “United States and this country. Besides that, indeed, there are some minor points which have been raised with reference to the regularity of the proceedings. It has been objected that, prior to the issuing of the warrant by the secretary of state, there should have been depositions taken and a warrant issued in America; but it seems to me that this objection cannot be maintained. There was another objection to the magistrates’ warrant; but the warrant is in strict accordance with the statute. Then comes the great question as to the construction of the statute. Now, the words are, undoubtedly, in their primary and ordinary signification, large enough to comprehend this case. Provision is made for the delivery up to justice of persons who have “committed piracy within the jurisdiction of the United States.” Now, there can be no doubt that if the case is one of piracy at all, it is piracy jure gentium. Nor can there be any doubt that if it was piracy it was committed on board an American ship, and so in that sense within the jurisdiction of the United States. The main argument on which reliance has been placed on the part of the prisoner is that the statute is to be read as applicable only to a case where the offence has been committed within the exclusive jurisdiction of the United States. But if the term piracy in the act is to be read as meaning piracy jure gentium, then it appears to me that this contention on the part of the prisoners is at once disposed of. If the contracting parties intended that such piracy should be deemed within the treaty, then—as it is clear that such piracy is not an offence against any particular state, but against the whole civilized world—then the case would not be one in which the offence was committed within the exclusive jurisdiction of the United States. So that if the word “piracy” is used in the statute in the largest sense, the case for the prisoners falls to the ground. Now, what is there to show that the term “piracy” has been used in a more limited sense? If it is to be restricted to piracy by municipal law, as a matter of peculiar jurisdiction in the courts of the particular country, then, no doubt, the statute may be construed in the sense contended for by Mr. James in his most able argument; that is, in the sense of an exclusive jurisdiction in the country claiming extradition. But if that had been the intention, we should have had piracy by municipal law in some way distinguished from piracy in the larger acceptation of the term, and no such limitation occurs in the act. Why, then, should the term be taken in the limited sense? It is said, and with truth, that the mischief extradition treaties are primarily intended to prevent is that of persons committing crimes within the territory of one state, and within its jurisdiction, escaping beyond the reach of that jurisdiction, and so enjoying impunity for their offences. But that this was the only object of such treaties I entertain great doubt, because it is impossible not to see that the mischief which it is desirable on the part of all civilized states to prevent is not limited to such cases as those which I have just suggested. It may be. that the offence may be cognizable or “justiciable” in two countries—as in the case of a murder committed by one British subject upon another in the United States or any foreign country, in which case, no doubt, the criminal may be tried here. Yet it would be highly inconvenient if in any such case he must be tried in this country. For criminals—as I observed in the course of the argument—may escape, not only by going beyond the territory and the power of the law of the country in which the crimes have been com mitted, but also by failure of proof and the difficulty of adducing sufficient evidence, except in the country where the crimes were committed. If, then, the language of the act is large enough to comprehend both these kinds of mischief, it seems to me that it would be highly inconvenient to restrict it to the former mischief alone. It has been urged, indeed, with great force, that it is inconsistent with the dignity of this country to surrender the jurisdiction of its own tribunals in a case of concurrent jurisdiction, and allow persons who could be tried here to be carried away to be tried elsewhere. But it seems to me that the moment you say you will give up offenders with a view to promote the large interests of justice throughout the whole civilized world as a matter in which all nations have a common interest, you must then look to see what is the extent and scope of the mischief you thus desire to counteract and to prevent; and I cannot see that there is any abandonment of national dignity or honor in saying that, though there may be concurrent jurisdiction in respect of ‘offences which have been committed by our own subjects in foreign countries, yet if the foreign states against whose laws the crimes have been committed require that the criminals should be surrendered to justice, and justice can be better done in the country in which the offence is committed, then I cannot see that there is any violation of national dignity or character in doing that which is expedient and desirable to promote the interests of justice. And, looking to the general balance of convenience, I think that if the treaty and the act were not capable of the construction I feel bound to put upon them, the feeling of the country would probably be to amend them. And, as I feel strongly that the words are strong enough to include the case of piracy jure gentium, and see no reason for adopting a more limited construction, I think that, if there was a prima facie case of such piracy before the magistrate, the case comes within the act. It is impossible, in my opinion, to limit the word “jurisdiction “by the insertion of the word “exclusive,” and on that point I adopt the view taken by Mr. Lush in his most able argument—that the true meaning of the word is the area over which, whether it be land or sea, the laws of the particular state prevail; and, inasmuch as it is conceded that the ship of a certain territory is, constructively, part of its territory, or, at all events, a place where its laws prevail, this ship was within the jurisdiction of the United States. I feel, therefore, bound (though I regret to differ from my learned brethren,) in adherence to the view which I take of the statute, to hold that this case comes within it, and, therefore, that the prisoners are not entitled to be discharged. As to the other question, whether, supposing piracy jure gentium to be within the act, there was sufficient prima facie evidence of it, I agree in everything Mr. James said as to acts done with the intention of acting on the behalf of one of the belligerent parties; and I concur in thinking that persons so acting, though not subjects of a belligerent state, and though they may be violating the laws of their own country, and may even be subject to be dealt with by the state against whom they thus act with a rigor which happily is unknown among civilized nations in modern warfare, yet if the acts were not done with a piratical intent, but with an honest intention to assist one of the belligerents, such persons cannot be treated as pirates. But then it is not because they assume the character of belligerents that they can thereby protect themselves from the consequences of acts really piratical. Now, here it is true that the prisoners at the time said they were actings on behalf of the confederates, and that was equivalent to hoisting the confederate flag. But then pirates sometimes hoist the flag of a nation in order to conceal their real character. No doubt, prima facie the act of seizing a vessel, saying at the same time that it is seized for the confederates, may raise a presumption of such an intention; but then all the circumstances must be looked at to see if the act was really done piratically, which would be for the jury, and I cannot say that the magistrate was not justified in committing the prisoners for trial. It is, however, unnecessary to say more upon this point, as, upon the main question, my learned brethren (for whose opinions I have the utmost deference, and who, I have no doubt, are right) are of opinion in favor of the prisoners, and therefore they will be discharged.

Mr. Justice Crompton. The case has been most fully and most ably argued, and it is unnecessary to say anything more on the minor points, as upon the main question the majority of the court are of opinion that the prisoners must be discharged. Taking the case as finally closed before the magistrate, their contention is that they are in illegal custody. Is there anything, therefore, that, in point of law, shows that it is illegal custody? That depends, first, on a pure question of law, on the construction of the act; and then on a question of law turning on the facts, whether the evidence was sufficient to warrant a committal, supposing the case to be within the act. Upon the latter point I quite concur with my lord, because it is not for us to weigh the effect of the evidence, which is for the jury; and all we can consider is whether there was enough to justify a committal for trial, and I agree with my lord that we cannot say that there was not. But upon the other and the main question I have come, after a careful consideration of the case, to a different conclusion. The preamble of a statute is a good key to its meaning, and here the preamble of the statute points clearly to offences committed within the jurisdiction of either of the contracting states—that is, within the jurisdiction of one of them, and not of the other. And then it goes on to speak of persons who, having committed certain crimes within the jurisdiction of one of the two states (that is, as I read it, of one of them and not of the other,) shall “seek an asylum” and be found in the territory of the other. Now, an “asylum” surely means a place where the criminal is safe from prosecution or pursuit, not a place where he may be tried and convicted. The enactments of the statute apply to cases in which persons having committed murder or piracy or robbery within the jurisdiction of the United States afterwards seek an asylum or are found in British territory; and it appears to me that they mean only cases of crimes committed within the exclusive jurisdiction of the United States. And that phrase, of course, could not be applied where the crime is equally within the jurisdiction of every nation in the world, as in piracy jure gentium. It would not be a proper use of words to say that such a crime was committed within the jurisdiction of the United States. Those words, “within the jurisdiction of either of the contracting states,” mean within the jurisdiction of either of them respectively or relatively to each other—i. e., or of one of them and not of the other. But here the crime was within the jurisdiction, not only of both of them, but of every nation in the world. Then the persons charged are to be “delivered up to justice,”—that is, to the justice of the country where justice can be done, implying that they are in a country where it cannot be done. Otherwise, when the men were actually committed for trial in this country, they might be claimed, to be tried abroad, which surely would be a strange construction of the act. Indeed, according to that construction one does not see why they might not be claimed back again by this country; for this is clearly, if anything, a case of piracy jure gentium, and triable in either country. The fact that the men, being in the ship, seized it, makes no difference; it is equally piracy unless it was an act of belligerency; but, if such, more so on that account than if the men had been in another ship. No doubt, in either case, the case would be within the jurisdiction of the United States, but it would be a jurisdiction shared equally with the whole world. Is that a case within the meaning of the act? Surely it would be a strange construction of its terms, and it must mean peculiar and exclusive jurisdiction. The case here was near American waters, but would be the same in principle if it had occurred in the Chinese seas. Whether, the act would apply in all cases, even of piracy by American subjects in distant seas, it is not necessary to determine. It is not to be lost sight of that the statute, in my view of it, carries out what was deemed by some writers to be the obligation of international law before it passed, viz: to deliver up criminals who could not be tried here. My view of the act is also confirmed by some high American authorities who have been referred to. The learned judge here referred to the following extracts from a speech of the Hon. J. Marshall, delivered in the House of Representatives of the United States, in Nash’s case, (5 Wheaton’s Reports, appendix:)

“The well-considered opinion of the American government is, that the jurisdiction of a nation at sea is personal, reaching its ‘own citizens only, and that this is the appropriate part of each nation on that element.”

“A pirate, under the law of nations, is an enemy of the human race. Being the enemy of all, he is liable to be punished by all. Any act which denotes this universal hostility is an act of piracy. Not only an actual robbery, therefore, but cruising on the high seas without commission, and with intent to rob, is piracy. This is an offence against all and every, nation, and is therefore alike punishable by all. But an offence which in its nature affects only a particular nation is only punishable by that nation. A statute may make any offence piracy, committed within the jurisdiction of the nation passing the statute, and such offence will be punishable by that nation. But piracy under the law of nations, which alone is punishable by all nations, can only consist in an act which is an offence against all. No particular nation can increase or diminish the list of offences thus punishable.”

So the able judgment of Mr. Justice Nelson, in the case of In re Kaine, (14 Howard’s American Reports, 137:)

“The two nations agree that upon mutual requisition by them, or their officers or authorities, respectively made, i. e., on a requisition made by either one government, or by its ministers or officers properly authorized, upon the other, the government upon whom the demand is thus made shall deliver up to justice all persons charged with the crimes as provided in the treaty who shall have sought an asylum within her territories. In other words, on a demand made by the authority of Great Britain upon this government, it shall deliver up the fugitive; and so in respect to a demand by the authorities of this government upon her. This is the exact stipulation entered into when plainly interpreted. It is a compact between the two nations in respect to a matter of national concern— the punishment of criminal offenders against their laws—and where the guilty party could be tried and punished only within the jurisdiction whose laws have been violated.”

The Chief Justice Taney and the other judges referred to this judgment as containing an exposition of the law on which they based their own judgments, and the result is that the statute only applies in cases where justice can only be obtained by means of extradition. It is difficult to see that two great maritime nations would have given up the power of punishing pirates whenever they were caught. Take the case of a pirate taking an American, an English, and a French vessel on the same day in some of those distant seas where pirates abound. Why should not the courts of either of the three countries in which the pirates might be found do justice upon them? It is said that we must trust to the discretion of the other state that it will not demand extradition in cases where it is unreasonable to do so. But that is very dangerous doctrine, to which I cannot subscribe; and I think it is far more wise to construe the act in such a way, if we can, as to exclude cases in which the demand would be unreasonable. At first sight it certainly occurred to me that the word “piracy” in its primary sense was against my reading of the statute; but that was answered by Mr. James in his able argument, for he stated that there were some species of piracy by the municipal law of America not piracy by our law. [This part of the subject will be found elaborately expounded in the judgment of Mr. Justice Shee.] It was said by Mr. Lushington that the jurisdiction would depend upon whether the ship was the ship of one nation or of another, but that can hardly be so. It is an offence against all nations. The pirates are not English pirates or American pirates, but pirates against all nations. The principal argument in support of the committal was founded upon the fact that the ship was American, and it was argued that therefore the case was, in some peculiar way, within American jurisdiction. But I doubt that. [This part of the case will be found to be dealt with fully by Mr. Justice Blackburn.] The piracy—if piracy—was not altered in character because committed in the ship itself which was seized. Suppose the prisoners had been in a ship of their own, and sunk the other, without ever going into it? It would be the same offence, and equally, in both cases, it would be within the common jurisdiction of the courts of all nations. And it does not appear to me, therefore, that it could be said to be within the jurisdiction of the United States more than of any other country. Nor can I see that in this statute the two states have given up their jurisdiction to try pirates whenever they can take them. I think, therefore, that the case is not within the statute, and that the prisoners are entitled to be discharged.

Mr. Justice Blackburn. I concur with my learned brethren in thinking that the prisoners must be discharged. I think that the statute is applicable only to” cases of crimes committed within the jurisdiction of one of the states, and not of the other; and that it does not apply to crimes committed equally within the jurisdiction of both. I think this is clear, whether we look to the terms of the act or to its obvious object. The main argument in favor of the opposite view is founded upon the force of the word “piracy,” which, it is urged, in its primary sense means piracy jure gentium, and so must apply to cases within the jurisdiction of both countries, and no doubt it would include such piracy if it stood alone; but then there are the words “committed within the jurisdiction of one of the contracting states,” which run through the act and are its governing words. The question is not of territorial jurisdiction, but of piracy, which is quite different. In Kent’s Commentaries I find it written. “It is of no importance, for the purpose of giving jurisdiction, on whom or where the piratical offence has been committed; the pirate who is one by the law of nations may be tried and punished in any country in which he is found. Statutes in one country may declare an offence committed on board of one of its own vessels to be piracy, and such an offence may be punishable exclusively by the nation which passed the statute; but piracy by the law of nations is an offence against all nations, and punishable by all.” Such is the law as laid down by that great American authority, and so it is laid down by our own authorities; and the treaty must be supposed to have been entered into with a full knowledge of it. Why then, should piracy by the law of nations be deemed within the jurisdiction peculiarly of one of the two states? It would be so if it were piracy only by its own municipal law. The American citizen who has done an act declared to be piracy by American statutes would be within American jurisdiction, and the English subject who has done an act which was declared piracy by an English statute would be within English jurisdiction; and such piracy, no doubt, would be within the treaty, and America would give up an English subject who had committed piracy by English law, and England would give up American subjects who had committed piracy by American law. But the man who has committed piracy jure gentium is equally within the jurisdiction of either country, and peculiarly in the jurisdiction of neither, and so is not within the meaning or the mischief of the statute. It is true there may be cases in which it may be more convenient that the prisoners should be tried in one country than in another, but this is a question not of convenience but of jurisdiction. If the case is anything it is piracy jure gen-tium. As to the evidence, its effect would be for the jury; but though the Confederate States are not recognized as independent, they are recognized as a belligerent power, and there can be no doubt that parties really acting on their behalf would be justified. But the case is either one of piracy by the law of nations—in which case the men cannot be given up, because they can be tried here—or it is a case of an act of warfare, in which case they cannot be tried at all; and as they are now detained for the purpose of their being delivered up to the American government they are entitled to be discharged.

Mr. Justice Shee. We have had the advantage in this case of hearing two arguments, one on the motion for the rule, and another on the motion for the discharge of the prisoners, and I have referred to and considered the cases which have been cited, and which were the same as on the former occasion. The crime with which the prisoners are charged as described in the return, and as appears on the depositions, is piracy, a crime of pre-eminent enormity, and which, oy the law of nations, is punishable wherever the offender may be found. It is not, in my opinion, the crime for which, under the name of piracy, extradition is stipulated in the treaty of the 9th of August, 1842; the provisions of that treaty were not needed for, nor are they, as it appears to me, applicable to, its repression. The treaty provides that persons charged with having committed the crimes of murder, piracy, (not piracy on the high seas,) arson, robbery, or forgery, within the jurisdiction of the United States, and seeking an asylum in or found in the territories of our sovereign, shall, on the requisition of the United States, be delivered up to justice. The object of the 10th article of the treaty, as appears from its provisions, and from the title and enacting clauses of the 6th and 7th of Victoria, cap. 76, which gave effect to it, was to legalize the apprehension, within the territories of the Queen, of persons charged with the commission of the crimes mentioned in the treaty within the jurisdiction of the United States, for the purpose of their surrender to that jurisdiction. The persons whose apprehension and extradition are contracted for by the treaty and authorized by the act of Parliament are persons “fugitive” from the-justice of the United States, and “ seeking an asylum “that is (but for the treaty and the act of Parliament) safe in the asylum of the territories of our Queen, because not liable to be arraigned before her tribunals. The words “ surrender,” “deliver up to justice,” mean deliver from an asylum or place of’safety up to justice, that is, to the ministers of justice of the United States, by whose courts only, on the persons charged with the crimes imputed, justice can be done. Read with reference to the declared object of the treaty and the act of Parliament, and by the light which the words “fugitive,” “seeking an asylum,” “ surrender,” “deliver up to justice,” afford, the words “within the jurisdiction” must, as I think, mean within the exclusive jurisdiction of the United States, and cannot be held to extend to crimes not within any jurisdiction exclusively, but justiciable wherever the person charged with having committed them may be found. It is injurious to suppose that a state should, in a public treaty, admit the possibility of its unwillingness or inability to do justice by binding itself to surrender to the justice of another state persons charged with the commission of crimes which it would be the duty of both to punish, and over which both would have jurisdiction. Had this been intended, provision would surely have been made for the case of justice by acquittal or conviction having been done by one state before cognizance of the crime taken by the other—for pleas of autrefois convict, or autrefois acquit—familiar in this case to the jurisprudence of both states, and for proof by the record of conviction or acquittal—that the crime for which the offender had been in jeopardy was the crime for which extradition was claimed. But the treaty and the act of Parliament contain no such provisions, though stipulations for the extradition of criminals had been long in force between the two governments, and the meaning of the words “ within the jurisdiction” had been the subject of serious discussion between them. Upon the words, therefore, of the treaty, and the act of Parliament alone, I should have been prepared to hold that the words “within the jurisdiction” mean within the exclusive jurisdiction of the state requiring the extradition. We have been invited, however, to consider—and I think we must consider—the state of the law as respects piratical offences before the date of the treaty, in order the more satisfactorily to determine to what extent the provisions of the treaty would take effect if the word “ exclusive” were added to the words “within the jurisdiction,” that is, first, within the exclusive jurisdiction of the United States as respects the place where the offence was committed; secondly, within the exclusive jurisdiction of the United States as respects the person by whom the offence was committed. It will be seen, I think, on reference to the legislation of the United States before and at the time the treaty was signed, that consistently with that legislation the words “within the jurisdiction”in both of these meanings may have, as respects offences of a piratical character, a very extensive range, without the crime of piracy on the high seas. The Constitution of the United States gave power to the Congress to define, among; other crimes, the crime of piracy., It was inherent in the sovereignty of the United States, as respects the subjects of the United States, to designate as piracy, and punish as piracy, crimes committed within its jurisdiction which were not thus piracy on the high seas, not piracy by the law of nations. The act of Congress of the 30th of April, 1790, provides “that if any person shall commit upon the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular state, murder or robbery, or any other offence which, if committed within the body of a country, would by the laws of the United States be punishable with death; or if any captain or mariner of any ship or other vessel shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise to the value of $50, or yield up such ship voluntarily to any pirate; or if any seaman shall lay violent hands on his commander, thereby to hinder and prevent his fighting in defence of his ship or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken, and adjudged to be a pirate and a felon, and being thereof convicted shall suffer death. And that if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States or any citizen thereof upon the high seas, under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death.” These provisions, most of which are with little more than verbal alteration taken from our own statute-book, include, as respects citizens of the United States, and persons owing temporary allegiance to them in return for the protection of themselves, not only piracy by the law of nations, but, as respects citizens, offences also which are piracy because the municipal lawgivers have chosen so to call them. By an act of Congress of March 3, 1819, chap. 75, sec. 5, it was enacted that if any person on the high seas should commit the crime of piracy, as defined by the law of nations, he should, on conviction thereof, suffer death. By an act of Congress of the 5th of May, 1820, it was enacted that any person who should upon the high seas or in any open roadstead, (which has been held in the Supreme Court of the United States to be upon the high seas,) or in any haven, basin, or bay, or in any river where the sea ebbs and flows, commit the crime of robbery in or upon any ship or vessel, or upon any of the ship’s company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate, and, being convicted thereof, shall suffer death. And if any person engaged in a piratical cruise or enterprise, or being of the crew or ship’s company of any piratical ship or vessel, shall land from such ship or vessel, and on shore shall commit such robbery, such person shall be adjudged a pirate, and on conviction thereof shall suffer death.” It thus appears that the legislature of the United States, in framing municipal laws for the repression of offences of a piratical character, has always kept in view and made special mention of “piracy on the high seas,” grouping with it, however, a large class of offences which bear a strong family resemblance to it, within the territorial jurisdiction, but which are not piracy by the law of nations, viz: “robbery in any river, haven, basin, or bay out of the jurisdiction of any particular State of the United States, upon any vessel or upon the lading or ship’s company of any vessel in any open roadstead, haven, basin, or bay, or in any river where the sea ebbs and flows.” On land if the robbery be committed by persons engaged in a piratical cruise or enterprise, or being of the ship’s crew or ship’s company of any piratical ship or vessel, who shall land from such ship or vessel, and on shore commit such robbery, many of the crimes thus defined, though included in a list at the head of which is “piracy on the high seas,” and classed with it as equal in guilt and deserving of equal punishment, differ from it in the essential particular that they are not committed on the high seas, but within the territorial jurisdiction of the United States; and being committed within the territorial or personal jurisdiction of the United States, they are thus offences not against our laws, (though we have laws to the same effect,) but against the laws of the United States. Regard being had to this legislation, which must have been in full view of the American minister who negotiated this treaty, it is a remarkable feature of the treaty, tending strongly to show that “ within the jurisdiction” means within the exclusive jurisdiction, territorial or personal, of the United States, that, though “piracy” committed within the jurisdiction of the United States, and, as if to avoid all cavil as to its meaning, “robbery” are mentioned, piracy on the high seas—piracy by the law of nations—has been omitted. For these reasons I am of opinion that the true reading of the words “within the jurisdiction “is within the exclusive jurisdiction of the state requiring extradition.

The Lord Chief Justice. I wish to add that one of the grounds of the conclusions to which I came was, that if we are to construe the statute as applying only to cases of exclusive jurisdiction, this consequence would follow, that wherever an English subject has committed in America a crime for which he could be tried there, although he could also be tried here, he could not be given up. I do not think the legislature could have contemplated a result so mischievous. However, as the majority of the court are of an opposite opinion, the prisoner must be discharged.

The master of the crown office (Mr. Norton) stated that an order would at once be made out for their discharge. They appeared greatly relieved by the result, which may be readily conceived when it is stated that simple piracy is capital in America, though it is not so in this country. The pirates lately executed were tried for murder.