Mr. Adams to Mr. Seward.

No. 685.]

Sir: I transmit herewith a copy of the London Times of the 10th instant, containing a report of the proceedings of the Court of Queen’s Bench on the application for a writ of habeas corpus on behalf of the pirates in the case of the Joseph L. Gerety. It is not unlikely that you may receive another from a special reporter engaged by Mr. Dudley, as he intimated to me his intention to employ one.

The questions involved in this case are not without difficulty, and the decision upon them, whatever it may be, must have an important bearing on the efficacy of the provisions of the extradition treaty hereafter.

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


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


Sittings in Banco, before the Lord Chief Justice, Mr. Justice Blackburn, Mr. Justice Mellor, and Mr. Justice Shee.

The case of the confederates charged as pirates.


This was the case of the prisoners now in jail at Liverpool charged with piracy, and arrested and detained by order of the secretary of state, at the instance of the American minister, for the purpose of being delivered up to the United States under the act for enforcing our extradition treaty with that country. It was admitted in the argument that the general object and scope of that treaty arose out of the fundamental maxim or principle of our law that “crime is local,” and is triable only in the country, and even the county, where it has been committed. On this subject the common law of America—which is in fact our own—is of course the same, though there is an exception, arising from another great principle of our law, that allegiance over native-born subjects is not local, but attaches its obligations to them wherever they are, from which it follows that if a British subject commit a murder on a British subject in America he could be tried and convicted here; and so in the converse case of a murder here by an American subject on an American subject, he could be tried in America. But if the crimes were not committed both by and upon the subjects of the state assuming to try the criminal, the case would not be so triable, and would only be triable abroad where the crime was committed. [Page 464] Such being the general principles of common law and international law on the subject, in 1842 a treaty of extradition was entered into which is recited in the act. That act recites the treaty thus:

“That by the 10th article of the treaty of 1842 it was agreed that the United States and her Majesty should, on mutual requisition by them or their ministers, &c., deliver up to justice persons who, being charged with the crime of murder, piracy, robbery, arson, or forgery, committed within the jurisdiction of either of the contracting parties, should seek an asylum or be found within the territories of the other: provided, that this should be only done upon such evidence of criminality as, according to the laws of the place where the fugitive person so charged should be found, would justify his apprehension and commitment for trial for the crime alleged to have been committed.”

And then the statute proceeds to enact—

“That in case of any requisition at any time made by the authorities of the United States in pursuance of or according to the treaty for the delivery of any persons charged with the crime of murder, piracy, arson, robbery, or forgery, committed within the jurisdiction of the United States of America, who shall be found within the territory of her Majesty, it shall be lawful for one of her Majesty’s secretaries of state, by warrant under his hand and seal, to signify that such requisition has been so made, and to require all justices of the peace, &c, to govern themselves accordingly, and to aid in apprehending the persons so accused, and committing them to jail for the purpose of their being delivered up to justice according to the treaty; and thereupon it shall be lawful for any justice of the peace, &c., in that part of her Majesty’s dominions where the offenders shall be found, to examine upon oath into the charge; and, upon such evidence as, according to the law 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 were accused had been committed there, to issue his warrant for the apprehension of such persons and commit them to jail, there to remain until delivered up in pursuance of the requisition. And upon the certificate of such justice of the peace that the offender has been so committed, it shall be lawful for one of the secretaries of state, by warrant under his hand and seal, to order the person so committed to be delivered up to such persons as shall be authorized in the name of the United States to receive such persons so committed, and convey them to the territory of the United States to be tried for the crime of which they are accused, and thereupon they shall be delivered up.”

It should be mentioned that, as was stated in the course of the argument, the treaty was entered into as incidental to a treaty of boundary, and one for the first time making, by the laws of both countries, the slave trade piracy. It should also be here mentioned that (as observed by the lord chief justice) the laws of the United States and of this country are in this respect peculiar— that their statute laws make certain acts piracy which would not be so by the common law or the law of nations; as to which, or piracy jure gentium, Sir Leoline Jenkins, a celebrated admiralty judge of the last century, laid it down that it is “justiciable” (i. e., amenable to justice, or triable) in the courts of any country. And it is defined by Wheaton as the offence of depredation on the high seas without being authorized by any sovereign state. Further, it is to be borne in mind that (as observed by Mr. Justice Shee) the statutes or peculiar law of either country might have made certain acts piracy committed within creeks or harbors not upon the high seas. And it was stated that there are certain acts of Congress making acts piracy which would not be piracy by the common law of either country or by the law of nations. Such being the law upon the subject, the circumstances under which the present case had arisen were these: In November last an American schooner—the Gerrity—lay at Matamoras, laden with a cargo of cotton, bound for New York. Some six or [Page 465] more men—including the prisoners—took passage on board, and embarked on board as passengers. It was admitted that they went on board armed for the very purpose of seizing the vessel, and under the command of one Hogg, who assumed to be in the confederate service, and professed to have papers from the confederate government, and under whose orders they acted. The vessel left Matamoras on the 16th of November, and at half past 12 on the night of the 17th the men thus embarked under his orders rose upon the master and crew and seized the ship, cast the master adrift in the Gulf of Mexico, and took the ship to Belize, in the British Honduras, where it would appear they abandoned the ship and sold the cargo, part of which had found its way to Liverpool. In January last three of the men (two of whom were British subjects) were found to be at Liverpool, and on the informal ion of the master of the schooner, who also happened to be there, Mr. Adams, the American minister, made a requisition to Sir George Grey under the above act, and he thereupon issued his warrant to the magistrates of Liverpool, under which they issued their warrants to arrest the men, and they were accordingly so arrested, and were then charged with piracy, on the evidence mainly of the master of the ship seized, who distinctly stated that Hogg told him he had papers to justify what he did, and that he was a major in the confederate service, and that he (the master) believed him to be so, and he also stated that the other men acted under his orders, and that when they seized the ship they said they did so for the confederates; and that Hogg spoke about Jefferson Davis. The statements of the prisoners were likewise given in evidence, and were to the effect that they were engaged by Major Hogg, of the confederate service, for the purpose of seizing the ship, and that he showed them documents signed by a General Bee, and stating that they were authorized by Jefferson Davis to do so. Upon the evidence adduced before the magistrate it was submitted, on the part of the prisoners, that the act was not piracy, and not within the treaty. The magistrate (at the suggestion of Mr. Justice Willes, at the assizes) remanded the men from time to time, in order to allow of their making an application to this court, the warrant for their committal distinctly stating that they were committed, not for the purpose of trial in this country, but of delivering up under the treaty.

Mr. Edward James, Q. C., (with him Mr. Littler and Mr. F. H. James,) had, on behalf of the prisoners, obtained a rule nisi for a habeas corpus, directed to the jailer at Liverpool, for the purpose of bringing them up with a view to their discharge, and now moved to make that rule absolute.

Mr. Lush, Q. C., (with Mr. Milward and Mr. Lushington,) appeared to show cause against the rule, instructed on behalf of the American minister. “The question (he said) is, whether there is sufficient evidence before the magistrate to justify him in committing the men for trial.”

The Lord Chief Justice. There is an antecedent question much more important—whether the act applies where the offence is not exclusively within the jurisdiction of the state making the requisition? And are you not in this dilemma—that either this is not piracy, (in which view the case, of course, is at an end) or, if it is piracy, that it is cognizable by the courts of this country, and so is not within the treaty of extradition? There appears to be the great difficulty.

Mr. Lush said he was quite aware of it, and was prepared to meet it. What was piracy? Wheaton defined it to be the offence of depredating on the high seas without the authority of any sovereign power. That was piracy “jure gentium” by the common law or by the law of nations. But, then, there was municipal piracy, or piracy created only by municipal laws, and which would not be piracy by the law of nations; and the word included both. Now, here the facts showed a prima facie case of piracy in the larger sense—piracy by the law of nations. There was the embarking on board as passengers, the seizure of the ship on the seas, the casting the master adrift, the abandoning [Page 466] of the ship, the sale of the cotton, and the possession of articles belonging to the master and crew. There is a charge of piracy under legal investigation; the magistrate would be bound to hear further evidence; in point of fact, further evidence could be adduced, the case is not closed, the committal is not final.

Mr. Justice Blackburn. The real point is whether—assuming that it is closed and is final—it is within the treaty. Whether the case is closed and the committal is final can be raised on the return to the writ.

Mr. Lush observed that two of the men were British subjects.

The Lord Chief Justice. That makes no difference upon the question, however it may render them liable to the municipal law of their own country for entering into a foreign service without their sovereign’s leave. But if they, in point of fact, were in that service, and seized the ship in the course of that service, is it piracy?

Mr. Lush. This is the question to be tried on the evidence.

The Lord Chief Justice. But there is the antecedent question whether, even assuming the clearest case of piracy, it is within the treaty as triable only in America.

Mr. Lush remarked that the vessel had been abandoned by the captors, and the cargo sold.

The Lord Chief Justice. We know not under what circumstances—stress of weather, or pursuit of hostile cruisers. But assume that it is piracy—can you bring it within the treaty?

Mr. Lush said he would deal with that question. He admitted that no doubt the general object of the treaty, as a treaty of extradition, was the extradition of offenders from the country in which they were found, and in which they could not be tried, to a country which claimed them for the purpose of trial. Generally speaking, the subjects of the treaty would be offences which could not be punished elsewhere than in the country claiming the men. It was a general principle that crime was local, and could only be tried in the country where it was committed. But though this was so as to most cases, it was otherwise as to piracy. That word was not in other extradition treaties—for instance, it was not in the treaty with France which proceeded only on crimes strictly local in their character. And many of the crimes mentioned in the present treaty are so. But there is the word “piracy” introduced into the American treaty, a treaty between two great maritime countries. Now the word comprised piracy jure gentium and piracy by municipal law, which may include acts not piratical by the common law. Now piracy jure gentium is defined to be the committing of an act of depredation on the high seas which, if committed on land, would be felony. And in that sense pirates were deemed to be enemies of the human race, and triable and punishable anywhere. By the general law of nations pirates in that sense may be tried in any country in which they may be found. But there is also piracy by municipal law, and there are acts punishable as piracy by the law of the United States which are not so punishable in this country. And the word “piracy” is used in both senses in this treaty. Moreover, piracy, like murder, may be committed on board an American ship, and if so, is within American jurisdiction. Murder committed on board an American ship would be murder committed within the jurisdiction of the courts of the United States, just as murder committed on board an English ship on an English subject would be murder within the jurisdiction of the English courts. So, as to piracy, even assuming it to be piracy jure gentium, yet as being committed on board an American ship it would be within the jurisdiction of the American courts; for a ship is for legal purposes the soil or territory of the country to which it belongs and piracy on board an American ship would be piracy within American jurisdiction.

[Page 467]

Mr. Justice Blackburn. You are speaking of piracy jure gentium?

Mr. Lush. Yes.

Mr. Justice Mellor. That would be triable in the courts of this country?

Mr. Lush. Yes; but the statute does not apply merely to cases triable exclusively in the American courts.

Mr. Justice Blackburn. Surely the whole scope and scheme of an extradition treaty applies it to offences not committed within the jurisdiction of the courts of the country where the offender is found. Is not that the sense and spirit of the treaty?

Mr. Lush said he could not admit it to be so.

The Lord Chief Justice cited Kent’s Commentaries (an American work) to the effect that such treaties applied to crimes which could not be punished in the country where the offender is found.

Mr. Lush said he had already admitted, arid he admitted again, that the general object of the treaty was the extradition of offenders who could not be tried in this country. But the offence of piracy was peculiar and exceptional, and the word “piracy” in the act embraces such a case as this.

Mr. Justice Blackburn. Is not the effect of piracy this—that by force it overbears and destroys the nationality of the ship, so that it necessarily, for that very reason, becomes a crime punishable in the courts of any country?

Mr. Lush disputed this; otherwise the courts of this country might claim to take cognizance of cases of piracy jure gentium, within three miles of the American coast, and so within the American dominion.

Mr. Justice Blackburn. That is a very different case from the present.

Mr. Lush. But if you once construe the term “piracy” to comprise cases on board an American ship, it would equally include piracy in American creeks or harbors within American dominion. Take the case of murder; no one could doubt the treaty might embrace cases of murder in which our courts might have jurisdiction. Suppose the case of the murder of one English subject by another in the streets of New York. Surely that would be within the act; yet the offender could be tried either in America or in England.

The Lord Chief Justice. Not in this country, except by virtue of particular statutes to meet such cases.

Mr. Justice Blackburn. Do you say that if the courts of this country were about to try a British subject for the murder of another British subject in New York, it would be competent to the American government to demand his delivery up?

Mr. Lush. Certainly.

Mr. Justice Blackburn. If you could make that out, you would do a great deal certainly.

Mr. Lush. Would not such a case be the case of a crime committed “within the jurisdiction” of the courts of the United States?

The Lord Chief Justice. But surely the very case supposed is strong to show that those words in the treaty must mean exclusive jurisdiction.

Mr. Lush. There is no such word in it.

The Lord Chief Justice. But is not that so clearly the spirit and scope of the treaty that it must be construed in that sense? Where there is concurrent jurisdiction in the courts of both countries, and the prisoner is in the custody of the courts of one country, can it be contended that the treaty was intended to oust its jurisdiction, and to enforce the delivery up of the prisoner merely that he should be tried in the courts of the other country?

Mr. Lush said he so argued. Such, he insisted, was the bargain made between the two countries, and they must both abide by it.

Mr. Justice Blackburn. The “bargain” of the two countries is set forth in the treaty itself, and does it not point to extradition in cases of exclusive jurisdiction?

[Page 468]

The Lord Chief Justice. Is not its scope and spirit this—to prevent fugitive offenders escaping from justice?

Mr. Justice Shee. The words are “seeking an asylum” in the country in which they are found.

Mr. Lush. That means merely that they are seeking to avoid trial, and the words are, “seeking an asylum or found.” The learned gentleman went on to argue that here the crime was committed within the jurisdiction of the American courts, because it was committed on board an American ship. He cited a case in our courts to show that it had been held here that an English ship on the high seas is part of the territory of England, and that a foreigner on board of such ship is subject to our laws, and that therefore if he commits there an act criminal by our law he may (by statute) be tried in our courts.

The Lord Chief Justice observed that the effect of this was merely that by statute a British ship was made British territory for the purposes of our own criminal law. It did not establish any general principle of common or international law.

Mr. Justice Mellor remarked that the essence of piracy in the common-law sense was that it was an offence not against any particular nation, but against mankind in general.

Mr. Lush. No doubt; but then it is an offence which must be committed in some locality, and if committed on board an American ship there is jurisdiction in the American courts; if on board a French or English ship, then there is jurisdiction in the French or English courts.

Mr. Justice Blackburn said he had derived from the American authorities the impression that their view of the law was that the effect of piracy was to overbear and destroy the nationality of the vessel.

Mr. Lush said he thought otherwise, but he was aware that in a case of the “United States vs. Flintoff,” (5 Wheaton’s Reports,) it was laid down that a commission issued by a person as an officer of the Mexican republic, or any unknown and unacknowledged state, would not authorize armed vessels to capture vessels of belligerents, and it was also laid down that a person acting with good faith, under circumstances showing that the seizure was made animo furandi, might be guilty of piracy.

Mr. Justice Blackburn cited other cases in the same volume of Wheaton’s Reports, showing that the American view of the law was that the effect of an act of piracy in seizing a vessel was to divest it of its nationality, and constitute a crime equally punishable everywhere, as being piracy by the law of nations.

Mr. Lush. There might be piracy without any actual seizure of the vessel,

Mr. Justice Blackburn. But that is not the present case. Here there was certainly a seizure.

Mr. justice Mellor observed that the whole evidence showed that this was the object.

Mr. Lush admitted again that piracy at common law was cognizable in the courts of any country, but that did not make it, he urged, less within the treaty. For if so, why was the word “piracy” introduced at all? What effect of application would it have?

Mr. Justice Shee observed that there might be piracy by statute in some creek or harbor within the territorial jurisdiction of the United States, or, as we should say in England, within the body of a country.

Mr. Lush. No doubt; and that is comprised in the word “piracy,” and was meant to be included in the treaty; and so of piracy in an American ship.

Mr. Justice Shee. You lay down a very large proposition in saying that a ship is the territory of the country to which it belongs. If that were so, then how would it be lawful to go on board a ship to take contraband of war?

Mr. Lush. That is a justifiable right of war.

[Page 469]

Mr. Justice Shee. It is not put on that ground. It is founded on the fact that the ship on the high seas is not part of the territory of the neutral.

Mr. Lush. It is a right conceded to a belligerent, and is a justification of what otherwise would be in the nature of a trespass. On the same ground the right of search is not conceded because the ship is deemed part of the territory; and what takes place on board a ship is, therefore, within the territory, and so within “the jurisdiction” of the country to which the ship belongs.

Mr. Justice Shee. Those words in the act may mean territorial or local jurisdiction, or they mean that legal jurisdiction which by our law is imposed upon its subjects, wherever they are, as a consequence of allegiance. Here, however, they appear to mean territorial jurisdiction, and they may have a sensible meaning in that sense with reference to the laws of the United States without resorting to the doctrine that a ship on the high seas is within the jurisdiction of the country to which it belongs; for if a ship were within a creek or haven of the United States the act would be piracy by the American statutes, and it may be that the words have that meaning.

Mr. Justice Blackburn cited Kent’s Commentaries to show that it was of no importance on whom or where a piratical offence is committed, as the pirate may by the laws of all countries be tried in any country where he is found.

Sir. Lush contended that, nevertheless, the case was within the act.

Mr. Justice Shee observed that the words “deliver up to justice” surely meant that the case was one in which the offence would not be triable unless the prisoner was delivered up.

Mr. Justice Mellor. The object is to prevent an escape from justice.

Mr. Lush urged that the country on whose ship the piracy had been committed had a greater interest in trying it.

Mr. Justice Mellor. But it would not try it more impartially than we should.

Mr. Lush. Nor less so, I hope.

Mr. Justice Mellor. No, nor less so; but then there is not, that I can see, any balance of convenience or “interest” in favor of the trial in America. The trial can be had quite as effectually here.

Mr. Lush. There may be no prosecutor.

The Lord Chief Justice. Here it appears that there is, and there have been preliminary proceedings.

Mr. Lush. It may be that the proofs may be given with more facility in this country.

The Lord Chief Justice. You yourself must argue that a case has been or may be made out against the prisoners here.

Mr. Lush. A prima facie case; but we should have to bring over witnesses from America. There is no limitation as to British subjects, and there can be no doubt that we should be bound to deliver up British subjects under this act. The American government would not enter into a treaty of extradition with a stipulation excepting British subjects from its operation. The learned counsel then went on to argue that there might be a charge of piracy under the municipal law of America cognizable only in the courts of that country.

Mr. Justice Blackburn. But here there is one state of facts, and it is all one case, and it is all equally piracy.

The Lord Chief Justice. And if the men are delivered up on the minor charge there can be no doubt that they would be tried upon the other.

Mr. Lush. There was the act of robbery on the high seas, independently of the seizure of the ship, and that by the American law is piracy.

The Lord Chief Justice. But we cannot disguise from ourselves that the real offence was the seizure of the ship.

Mr. Justice Mellor. All the evidence shows that such was the object of the men and the real character of the act.

Mr. Justice Blackburn. And it is either piracy jure gentium or nothing. If [Page 470] it was justified as the act of a belligerent, it is nothing. If it is not so justified it is piracy. It was all one entire act.

Mr. Lush then argued that, at all events, in any view, the men were liable to be tried here, and so could not be discharged.

The Lord Chief Justice. But the warrants show that they are not detained for trial in this country, but for the purpose of delivery up to the American authorities.

Mr. Lush Still they ought not to be discharged, as they might be properly detained.

The Lord Chief Justice Suppose we are of opinion that the effect of the treaty is not to oust the courts of this country of their jurisdiction, there is no right to detain the men for the purpose of delivering them up to the American authorities; and it would be too late if we waited until they were actually about to be delivered over.

Mr. Lush. That would depend on the secretary of state.

The Lord Chief Justice. This warrant issues as a matter of course if the men are once committed to be delivered up.

Mr. Justice Blackburn. If the men are really detained for trial in this country that would be a good return to the writ of habeas corpus. But nothing in the case shows that that is so.

The Lord Chief Justice. And if the men are illegally detained, as the matter now stands, they are entitled to be discharged.

After some further discussion, the learned judges went out to consider of their decision, and on their return,

The Lord Chief Justice said, we are of opinion that the rule should be made absolute. We do not desire, at the present stage of the case, to express any decision as to the construction of the statute; but we think that, in a matter of so much importance in an international point of view, it is desirable that we should have before us all the materials on which to form our judgment on authoritative grounds. We therefore think it better that the rule for a habeas corpus should be made absolute.

The rule will be argued next term, which begins on the 23d instant.